[Senate Hearing 117-590]
[From the U.S. Government Publishing Office]
S. Hrg. 117-590
S. 4870, S. 4896 AND S. 4898
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HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
SECOND SESSION
__________
NOVEMBER 16, 2022
__________
Printed for the use of the Committee on Indian Affairs
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
__________
U.S. GOVERNMENT PUBLISHING OFFICE
51-169 PDF WASHINGTON : 2023
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COMMITTEE ON INDIAN AFFAIRS
BRIAN SCHATZ, Hawaii, Chairman
LISA MURKOWSKI, Alaska, Vice Chairman
MARIA CANTWELL, Washington JOHN HOEVEN, North Dakota
JON TESTER, Montana JAMES LANKFORD, Oklahoma
CATHERINE CORTEZ MASTO, Nevada STEVE DAINES, Montana
TINA SMITH, Minnesota MIKE ROUNDS, South Dakota
BEN RAY LUJAN, New Mexico JERRY MORAN, Kansas
Jennifer Romero, Majority Staff Director and Chief Counsel
Lucy Murfitt, Minority Staff Director and Chief Counsel
C O N T E N T S
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Page
Hearing held on November 16, 2022................................ 1
Statement of Senator Heinrich.................................... 3
Statement of Senator Lujan....................................... 2
Statement of Senator Murkowski................................... 1
Statement of Senator Padilla..................................... 4
Statement of Senator Schatz...................................... 1
Witnesses
Galvan, Hon. Gabriel, Governor, Pueblo of Zia.................... 29
Prepared statement........................................... 30
Kowemy, Jr., Hon. Martin, Governor, Pueblo of Laguna............. 43
Prepared statement........................................... 45
Loretto, Hon. Raymond, DVM, Governor, Pueblo of Jemez............ 21
Prepared statement........................................... 23
Newland, Hon. Bryan, Assistant Secretary, Indian Affairs, U.S.
Department of the Interior..................................... 5
Prepared statement........................................... 7
Peyron, Hon. Neil, Chairman, Tule River Tribe.................... 13
Prepared statement........................................... 15
Vicente, Hon. Randall, Governor, Pueblo of Acoma................. 33
Prepared statement........................................... 34
Appendix
Carver, Larry, President of the Association of Community Ditches
of the Rio San Jose, prepared statement........................ 64
Garcia, Hon. Erik, Mayor, City of Grants, prepared statement..... 57
Gonzales, Hon. Felix O., Mayor, Village of Milan................. 61
Hamman, Michael A., P.E., New Mexico State Engineer, prepared
statement...................................................... 57
Letters and resolutions submitted for the record
Montoya, Gilbert, President, San Ysidro Community Ditch
Association, prepared statement................................ 61
Revak, Juanita, President, Jemez River Basin Coalition of
Acequias, prepared statement................................... 62
S. 4870, S. 4896 AND S. 4898
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WEDNESDAY, NOVEMBER 16, 2022
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:49 p.m. in room
628, Dirksen Senate Office Building, Hon. Brian Schatz,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. BRIAN SCHATZ,
U.S. SENATOR FROM HAWAII
The Chairman. Good afternoon. During today's legislative
hearing, we will consider three bills: S. 4870, Tule River
Tribe Reserved Water Rights Settlement Act of 2022, S. 4896,
Pueblos of Jemez and Zia Water Rights Settlement Act of 2022,
and S. 4898, Pueblos of Acoma and Laguna Water Rights
Settlement Act of 2022.
S. 4870, introduced by Senators Padilla and Feinstein,
would quantify the Tule River Tribe's Surface Water Rights,
appropriate funding for the construction of water storage
projects, and codify the Tribe's agreements with downstream
water users.
Senator Heinrich's bills, S. 4896 and S. 4898, would ratify
the agreements that the Jemez and Zia Pueblos and the Acoma and
Laguna Pueblos respectively, negotiated with the State of New
Mexico and various local water users regarding the Pueblos'
respective water rights.
These bills would also provide funding necessary to effect
the settlements. Senator Lujan, of course, is a cosponsor of
both bills.
Before I turn to Vice Chair Murkowski for her opening
statement, I would like to extend my welcome and thanks to our
witnesses today. I look forward to your testimony and our
discussion.
I will recognize Vice Chair Murkowski before recognizing
our colleagues to make their introductions of our panelists.
STATEMENT OF HON. LISA MURKOWSKI,
U.S. SENATOR FROM ALASKA
Senator Murkowski. Thank you, Mr. Chairman.
Good afternoon to those who are serving on today's panel,
to the many, many who have traveled quite a distance, as I
understand, to be here in Washington, D.C. for this very
important hearing.
I am going to keep my comments brief, after our business
meeting. I know having a full panel takes some time, and we
want to hear from you.
All three of these bills would approve and authorize
Federal funding to carry out the settlements of Indian water
rights claims in two States, that of New Mexico and California.
I understand that securing an adequate, reliable water supply
for these Native communities is paramount. Negotiated water
settlements continue to be the preferred method to reach
consensus to accomplish that goal.
I congratulate the tribal nations here today for getting to
this point in the process. I understand it has not been easy. I
understand it has been very, very long. So I look forward to
learning more about each of the settlement bills before us
today.
I want to acknowledge that for some of our witnesses here,
this may in fact be the first time they have had an opportunity
to participate in a Senate hearing. You honor us with your
presence. We are proud that we can be at this place to have
such a positive hearing.
Thank you, Mr. Chairman.
The Chairman. It gives me great pleasure to introduce
Senator Lujan, a great member of this Committee and a great
advocate for Indian Country and New Mexico. Senator Lujan?
STATEMENT OF HON. BEN RAY LUJAN,
U.S. SENATOR FROM NEW MEXICO
Senator Lujan. Thank you, Chair, and Vice Chair, for
holding this important hearing. Thank you to our friend and
senior Senator of New Mexico for his work and for joining us
today to speak in support of Senate Bills 4898 and 4896,
critical water rights legislation for the Pueblos of Acoma and
Laguna, Jemez and Zia that I am proud to cosponsor.
It gives me great pleasure to welcome the Governors from
the four Pueblos and their staff and council members, as well
as the guests in the audience from the New Mexico Office of the
State Engineer who have traveled far to work together to find
agreement and bring us to where we are today.
I have also received substantial correspondence from water
basin users, both tribal and non-tribal, expressing support for
these two bills. I will be asking unanimous consent at the end
of this, Mr. Chairman, to submit them into the record.
These pieces of legislation, which come at a critical time,
ratify water rights settlements that have been decades in the
making. Uncertainties facing the Jemez River and Rio San Jose
Basins due to drought and climate change threaten the deeply
rooted traditions that make New Mexico so unique. These
increased strains on the Rio San Jose and the Rio Jemez have
dramatically reduced water supply for Pueblo and non-Pueblo
users.
These pieces of legislation have broad support. I
appreciate everyone who has taken the time to work neighbor to
neighbor, friend to friend, to find agreement. That is not easy
to do, and you are all to be applauded for getting that done.
The Governors who are here, friends, leaders, mentors, they
have done incredible work. In addition to the work they do as
Governors, they carry out many other responsibilities and bring
in expertise from the work that they have done.
I wanted to have the opportunity to recognize the four
Pueblo Governors from New Mexico. On today's panel is Governor
Randall Vicente, an enrolled member of the Pueblo of Acoma who
is of the Eagle Clan. He grew up with his grandparents learning
the arts of ranching, traditional farming, being a traditional
leader. He previously served as the Second Lieutenant Governor
for Acoma Pueblo in 2001, 2002, 2011 and 2012, and worked with
the Pueblo Department of Natural Resources.
It is also my pleasure to introduce Governor Martin Kowemy,
another friend who has an exceptional background. First elected
to the Council in 2017, Mr. Chairman, he then became a staff
officer in 2021 before he assumed the governorship in August.
He is married and has three beautiful children. Thank you for
being with us, sir.
I am also glad to see our friend Governor Raymond Loretto
of Jemez Pueblo here with us. Not only is Dr. Loretto a full-
time Governor, he is also a practicing veterinarian, who
operates his own clinic near Jemez Pueblo. So we depend on him
a lot. He has served as an active member of the tribal council
since 2004, previously elected Governor in 2003 and 2015, and
as First Lieutenant Governor in 2001. Also very involved as it
pertains to public health and making sure that we are all
better
Finally, I am proud to welcome Governor Gabriel Galvan. It
is an honor to have you, sir, a friend of my father's. The
stories that you share of working with my late dad, they touch
me in my heart. I carry them with me everywhere I go. It means
a lot.
Before taking office in 2022, he served as a BIA police
officer for nearly 30 years. When he is not tending to tribal
government matters, he is pursuing his long-time passion of
ranching.
Governors, it is an honor to have you here, and all of our
guests, and the councils. I yield back.
The Chairman. Thank you, Senator Lujan.
Senator Heinrich?
STATEMENT OF HON. MARTIN HEINRICH,
U.S. SENATOR FROM NEW MEXICO
Senator Heinrich. Chairman Schatz and Ranking Member
Murkowski, thank you so much for holding this hearing on two
bills of critical importance to New Mexico's water future.
Thank you to Assistant Secretary Newland, Governor Vicente,
Governor Loretto, Governor Kowemy, Governor Galvan, for being
here today to speak about these incredibly important
settlements. I want to thank every New Mexican along the way
who has worked so hard, not just for years, but for decades, to
bring these settlements to fruition.
The bills before you today would settle the water rights of
Pueblos in the Rio Jemez and Rio San Jose Basins. For more than
a century, the United States has failed to protect the water
rights of these four Pueblos.
As a result, members of these Pueblos have suffered from
inadequate water supplies, and water is, of course, a health
issue. But it is also an economic issue. It is hard to bring
jobs and to bring economic development to any community that
can't guarantee reliable water for business.
The failure of the United States to ensure that these
Pueblos could use the water that they have always owned has
reverberated throughout generations. It has a direct impact on
the well-being of Pueblo members today, and it is long past
time that we make this right.
This legislation would implement two settlement agreements
that have been carefully negotiated between the Tribes, the
State of New Mexico, neighboring water users and the Department
of Interior. I want to thank all the parties for their tireless
work in reaching a settlement agreement for these two basins.
This legislation would fully settle the claims of the
Pueblo of Laguna and the Pueblo of Acoma in the Rio San Jose
Basin as well as the claims of the Pueblo of Jemez and the
Pueblo of Zia in the Rio Jemez Basin. The settlements will
provide critically needed funding for water infrastructure to
develop and distribute new water to Pueblo homes and
businesses. They will make it possible for these Pueblos to
finally use the water that they have been owed for more than a
century.
Over the last 15 years, Congress, working through this
Committee, has made real progress on making tribes whole for
the water that has always been theirs. We have an opportunity
to take yet another step forward on that important work by
approving these two settlements.
Finally, I want to mention, my colleague Senator Lujan and
I started on the analogous House Committee many years ago. We
realized in doing our first water settlements that those
negotiations started a few years before the two of us were
born. This represents the work of generations, four decades of
hard work to get to where we are today. I want to thank him for
his leadership in helping us to get where we are today.
Governors, thank you so much. Chairman, Ranking Member,
thank you for having me here today.
The Chairman. Thank you very much to the incredible
delegation from New Mexico.
It now gives Senator Murkowski and I great pleasure to
introduce the Senator from California, our friend, Mr. Padilla.
STATEMENT OF HON. ALEX PADILLA,
U.S. SENATOR FROM CALIFORNIA
Senator Padilla. Thank you, Mr. Chair and Ranking Member
Murkowski, for allowing me the opportunity to join you today.
It is an honor for me to introduce Neil Peyron, Chairman of
the Tule River Tribe, and to say a few words on behalf of my
bill to formally recognize the Tribe's water rights.
As this Committee understands very well, to understand the
injustice that our legislation seeks to correct, we first need
to know a little bit about the history of the Federal
Government's relationship with the Tule River Tribe in
California. The Tule River Tribe is the second largest Tribe in
California, with over 1,900 tribal members. The Federal
Government first established the Tribe's reservation in 1856,
with the specific goal of providing the Tribe with the farmland
and water resources needed to be self-sufficient.
Unfortunately, Federal agencies then fraudulently stole
their land, and the Tribe was forced to move to a new
reservation upstream. This new land, the basis for the Tribe's
current reservation, does not have the irrigation or water
storage facilities that they were promised.
As a result, the Tule River Tribe now faces a constant
battle simply to access clean water. Families are forced to
haul in water by truck for their own daily hygiene or for their
children to drink. On days when water access it too tough to
get, some simply go without enough water.
It is unacceptable that members of the Tule River Tribe or
any Tribe for that matter should face a daily struggle for
water. It is a moral failure of our own making, and it is a
direct result of a broken promise made by the Federal
Government.
That is why Senator Feinstein and I introduced the Tule
River Tribe Reserved Water Rights Settlement Act of 2022. My
bill would quantify the Tribe's water rights, providing funding
for a water storage project and transfer approximately 9,000
acres of Forest Service lands to the Tribe to manage the
watershed's headwaters.
This is a culmination of decades of efforts by the Tule
River Tribe, including Chairman Peyron, to work with the
Federal Government and downstream water users to secure their
water rights without resorting to litigation.
For too long, the Federal Government has failed to live up
to its trust and treaty responsibilities to the Tribe, leaving
them in the current water crisis. This bill will change that. I
urge my colleagues to advance this bill in order to do right by
the Tule River Tribe and rectify 150 years of broken promises.
I am now honored to introduce one of the leaders of that
diligent effort for justice, Chairman Neil Peyron, who is here
to testify on behalf of the Tribe. He has served as the Tribe's
chairman for 15 years and previously served as the Tribe's vice
chairman and secretary treasurer. The chairman is a true civil
servant, having served on many local, State and Federal and
Tribal committees, including the Bureau of Indian Affairs
Policy Committee, the Intertribal Council Timber Committee, and
the Central California Tribal Farm Committee.
Chairman, we are so grateful for your being here today.
Thank you once again for your tireless advocacy for the Tribe.
Thank you, Mr. Chair.
The Chairman. Thank you very much, Senator Padilla.
We will now start with our testimony, starting with someone
who has yet to be introduced, the Honorable Bryan Newland,
Assistant Secretary for Indian Affairs at the U.S. Department
of Interior. Please proceed with your testimony and please, all
testifiers, if you can confine your testimony to five minutes
or fewer, that would be great. Thanks, Mr. Secretary.
STATEMENT OF HON. BRYAN NEWLAND, ASSISTANT
SECRETARY, INDIAN AFFAIRS, U.S. DEPARTMENT OF THE
INTERIOR
Mr. Newland. Megwich. Good afternoon, thank you Chairman
Schatz, and Vice Chair Murkowski and members of the Committee.
My name is Bryan Newland. I serve as the Assistant Secretary
for Indian Affairs here at the Department of the Interior. I
want to thank the Committee for the opportunity to share the
Department's views on three Indian water rights settlement
bills today.
These three bills would bring certainty, and more
importantly, water security, to five tribal communities in
drought-stricken regions. On the whole, the Administration
supports these settlements and these bills. As noted in our
written testimony, there are a few technical issues that need
to be addressed on these bills.
With respect to S. 4870, the Tule River Tribe Reserved
Water Rights Settlement Act, we have worked with the Tule River
Tribe and the Department of Justice in proposed language that
should resolved most of those issues. The Department is very
close to substitute language and would be happy to share that
red-line with the Committee and sponsors of the bill as soon as
it is finalized.
For S. 4896, the Pueblos of Jemez and Zia Water Rights
Settlement Act, we have developed language that will address
some concerns about several allotments.
The Pueblos of Acoma and Laguna Water Rights Settlement
Act, S. 4898, would resolve the Acoma and Laguna Pueblo water
rights claims in the Rio San Jose Basin in New Mexico. This
bill would settle claims by the Acoma Pueblo in the Rio del
Salado and Laguna Pueblo in the Rio Puerco. It would also
ratify and confirm the water rights settlement agreements among
the Pueblos, the State of New Mexico and non-Indian water
users, and authorize the Secretary of the Interior to sign the
settlement agreement. It would also protect non-Indian water
users.
This is a fund-based settlement that would authorize $850
million to implement the agreements. In addition, each Pueblo
would create a tribal water code.
The Pueblos of Jemez and Zia Water Rights Settlement Act,
S. 4896, would resolve the Jemez and Zia Pueblos' water rights
claims in the Rio Jemez Basin in New Mexico. The bill would
also ratify and confirm water rights settlement agreements
among the Pueblos, the State of New Mexico and non-Indian
users. It authorizes the Secretary of the Interior to sign the
settlement agreement. It also protects non-Indian water users.
This is also a fund-based settlement that would authorize
$490 million to implement the agreement. Additionally, each
Pueblo would create and enact a water rights code.
The process for each of the four Pueblos to get to this
point in resolving their water rights is almost as old as I am.
It has taken approximately 40 years to get to this point.
Turning to the Tule River settlement, there is a lengthy
history of the United States not fulfilling its promise to
protect the Tule River Tribe's homelands as we heard the
Senator just say. Today, the Tribe suffers the consequences of
that shortcoming due to difficult terrain and a lack of access
to water on its reservation.
In recent summers, the Bureau of Indian Affairs has
provided emergency water supplies to the Tribe for distribution
to tribal members when the Tribe runs out of water.
The Tule River Tribe Reserved Water Rights Settlement Act,
S. 4870, would resolve all of the Tribe's water rights claims
in California. The bill would also ratify and confirm the Tule
River Tribe Water Rights Settlement Agreement among the Tribe
and most downstream users, and authorize the Secretary of the
Interior to sign the agreement. It would also direct the
Attorney General to file a suit in Federal court to bind all
water users in the Basin and transfer various lands into trust
for the Tribe.
This is also a fund-based settlement that would authorize
$568 million to implement the agreement. Part of that funding
will support construction of a much-needed reservoir that the
Tribe needs to provide water security for its members.
I had the opportunity to visit the Tribe's reservation on
the western slope of the Sierra Nevadas this summer. I was able
to see the drought conditions and the effects those conditions
have on the reservation. I also witnessed the harm to the land
caused by recent wildfires.
But I was also able to see first-hand how the Tribe's land
management practices are critical to protecting the ancient
sequoia trees along with the watershed.
This Administration is committed to fulfilling our trust
and treaty obligations to tribes. That includes ensuring that
Tribes have the ability to continue their way of life in their
homelands. Access to water is a vital part of ensuring that we
can meet our trust obligations.
This Administration is also committed to making long-needed
investments in tribal communities and ensuring that tribes are
making the decisions about how those investments are used. We
are prepared to work with the Committee and the sponsors to
address any outstanding issues.
I look forward to answering your questions. Thank you.
[The prepared statement of Mr. Newland follows:]
Prepared Statement of Hon. Bryan Newland, Assistant Secretary, Indian
Affairs, U.S. Department of the Interior
Aanii (Hello)! Good afternoon, Chairman Schatz, Vice Chairman
Murkowski, and Members of the Committee. My name is Bryan Newland. I am
the Assistant Secretary for Indian Affairs at the Department of the
Interior (Department). Thank you for the opportunity to present
testimony regarding S. 4896, the Pueblos of Jemez and Zia Water Rights
Settlement Act of 2022; S. 4898, the Pueblos of Acoma and Laguna Water
Rights Settlement Act of 2022; and S. 4870, the Tule River Tribe
Reserved Water Rights Settlement Act of 2022. S. 4896 and S. 4898 would
approve and provide authorizations to carry out the settlement of
certain water rights claims of the Acoma, Laguna, Jemez, and Zia
Pueblos (Pueblos) in New Mexico, and S. 4870 would approve and provide
authorizations to carry out the settlement of all water rights claims
in the State of California of the Tule River Tribe.
I. Introduction
The Biden Administration recognizes that water is a sacred and
valuable resource for Tribal Nations and that long-standing water
crises continue to undermine public health and economic development in
Indian Country. This Administration strongly supports the resolution of
Indian water rights claims through negotiated settlements. Indian water
settlements help to ensure that Tribal Nations have safe, reliable
water supplies; improve environmental and health concerns on
reservations; enable economic growth; promote Tribal sovereignty and
self-sufficiency; and help advance the United States' trust
relationship with Tribes. At the same time, water rights settlements
have the potential to end decades of controversy and contention among
Tribal Nations and neighboring communities and promote cooperation in
the management of water resources.
Congress plays an important role in approving Indian water rights
settlements and we stand ready to work with this Committee and Members
of Congress to advance Indian water rights settlements.
Indian water rights settlements play a pivotal role in this
Administration's commitment to putting equity at the center of
everything we do to improve the lives of everyday people-including
Tribal Nations. We have a clear charge from President Biden and
Secretary Haaland to improve water access and water quality on Tribal
lands. Access to water is fundamental to human existence, economic
development, and the future of communities- especially Tribal
communities.
To that end, the Biden Administration's policy on negotiated Indian
water settlements continues to be based on the following principles:
the United States will participate in settlements consistent with its
legal and moral trust responsibilities to Tribal Nations; Tribes should
receive equivalent benefits for rights which they, and the United
States as trustee, may release as part of the settlement; Tribes should
realize value from confirmed water rights resulting from a settlement;
and settlements should contain appropriate cost-sharing proportionate
to the benefits received by all parties benefiting from the settlement.
In addition, settlements should provide finality and certainty to all
parties involved.
II. New Mexico Water Settlements
A. Historical Context
Before discussing the proposed settlements and the Administration's
position on them, it is important to provide background on the disputes
that led to the settlements. Like other Pueblos in New Mexico, the four
Pueblos were agricultural people living in established villages when
the Spanish explorers first came to New Mexico. 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, which protected rights recognized by prior
sovereigns, including Pueblo rights.
1. Jemez and Zia Pueblos
The Rio Jemez basin, located in north-central New Mexico and to the
northwest of Albuquerque, is a major tributary of the Rio Grande and is
home to the Pueblos of Jemez and Zia. In total, the Pueblos hold nearly
250,000 acres (approximately 89,600 acres for Jemez Pueblo and 160,000
acres for Zia Pueblo).
Historic increases in water use by non-Indians impacted, and
continue to impact, the two Pueblos' ability to have access to adequate
surface and groundwater supplies. Increased groundwater pumping by non-
Indians, pursuant to permits issued by the State of New Mexico, make
the Pueblos' access to groundwater supplies increasingly difficult.
2. Acoma and Laguna Pueblos
The Rio San Jose, located in west-central New Mexico and west of
Albuquerque, is a tributary of the Rio Puerco, which flows into the Rio
Grande. The area is also home to the two Pueblos of Acoma and Laguna.
In total, the Pueblos hold approximately 1.064 million acres (over
563,000 acres for Acoma Pueblo and over 501,000 acres for Laguna
Pueblo).
While there were small communities established by Spain and Mexico
on smaller tributaries of the Rio San Jose, there were no mainstem
upstream users disrupting the Pueblos' water use until the United
States' acquisition of the territory. The establishment by the United
States of Fort Wingate near Ojo del Gallo spring in 1862, and
subsequent use of the area by the Village of San Rafael, resulted in
the diversion of spring flow that had previously provided a significant
contribution to Rio San Jose flows that had been available to both
Pueblos. Acequias on Rio San Jose tributaries began diverting water
from the system in the late 19th century to the detriment of the
Pueblos. Non-Indian water users' construction of a dam on Bluewater
Creek, above and upstream of Acoma Pueblo, also reduced flows to the
Rio San Jose, impacting both Pueblos. As the non-Indian water users
attempted to irrigate more and more acreage, they turned to
groundwater. This groundwater pumping siphoned off water that would
have flowed as surface water in the Rio San Jose for the Pueblos' use.
Groundwater depletions in the Rio San Jose basin increased after
uranium was discovered in the Grants Mineral Belt in the 1950s. The
uranium was located in the same rock formations where water was stored,
and that water supplied perennial springs within the basin, many of
which contributed to Rio San Jose flows. These aquifers, and those
located above them, were dewatered by mining companies, resulting in
depleted spring flow contributions to the Rio San Jose. Uranium milling
facilities also consumed large amounts of groundwater. The growth of
this mining economy and the concomitant growth of non-Indian
communities, such as the City of Grants, increased water use in the Rio
San Jose basin to the detriment of the Pueblos.
B. Water Resources of the Pueblos
In 1983, general stream adjudication of both the Rio San Jose (to
resolve the dispute over the water rights of Acoma Pueblo and Laguna
Pueblo, as well as the Navajo Nation) and the Rio Jemez (to resolve the
dispute over the water rights of Jemez Pueblo and Zia Pueblo, as well
as Santa Ana Pueblo) were initiated in New Mexico. Negotiations
regarding potential settlement of the Pueblos' water rights claims have
been ongoing since 1993, when the United States established teams to
negotiate comprehensive settlements of all the Navajo Nation and
Pueblos' water rights in their respective basins.
The Pueblos are located in an arid region of New Mexico, and
drought is a common occurrence that has impacted, and continues to
impact, all four Pueblos. Recent effects of global warming and climate
change are exacerbating these effects and surface water supplies are
dwindling.
Since 1996, Jemez and Zia Pueblos and non-Indian water users have
been operating under a negotiated irrigation rotation agreement. The
lack of reliable water supply continues to impact the two Pueblos'
ability to sustain their agricultural practices and to move forward
with water development projects to benefit the Pueblos and their
members.
For Acoma and Laguna Pueblos, the long-term pumping of groundwater
and unimpeded diversion of surface water by non-Indian water users has
resulted in significant impacts to the water supply. Even if the
Pueblos were able to successfully curtail the water use of non-Indian
junior users as part of the ongoing adjudication, the Rio San Jose
system would not recover to provide the historic flow levels for the
two Pueblos for several decades.
C. Proposed Jemez and Zia Pueblos Settlement Legislation
Jemez and Zia Pueblos, the State of New Mexico, and non-Indian
water users executed a settlement agreement earlier this year,
quantifying the rights of the two Pueblos and reaching agreement on
other key issues, including the requirements and parameters of a
possible future Augmentation Project, which the Pueblos and non-Indian
water users may construct to improve infrastructure and provide
groundwater to firm up the irrigation water supply for certain
agricultural acreage. The United States is not a signatory to the 2022
settlement agreement, nor is Santa Ana Pueblo, which wishes to continue
to litigate its claims in the adjudication.
S. 4896 would resolve all of the Jemez and Zia Pueblos' water
rights claims in the Rio Jemez Basin in New Mexico; ratify and confirm
the water rights settlement agreement among the Pueblos, the State of
New Mexico, and non-Indian water users and authorize the Secretary of
the Interior to sign the settlement agreement; provide protections for
non-Indian water users from priority calls by the Pueblos; require the
Pueblos to promulgate Pueblo Water Codes and ensure that certain uses
and changes in use of the Pueblos' water rights do not impair existing
non-Indian water users; and authorize funds to implement the settlement
agreement.
S. 4896 ratifies and confirms the Jemez and Zia Pueblos' water
rights to over 9,000 acre-feet per year (AFY)--6,055 AFY for Jemez
Pueblo and 3,699.4 AFY for Zia Pueblo--from various surface water and
groundwater sources on each Pueblo. These amounts include 1,200 AFY of
future groundwater use for economic development for each Pueblo.
S. 4896 also protects non-Indian water users, as the Jemez and Zia
Pueblos have agreed to not make priority calls for their senior rights
on all decreed water rights of junior non-Indian users. In addition,
the Pueblos have agreed to promulgate Pueblo water codes, which will
govern permitting of uses of the Pueblos' water rights; provide
processes for protests by parties affected by Pueblo permitting
decisions; and ensure that water use under a Pueblo permit does not
impair existing surface and groundwater rights.
Finally, S. 4896 establishes Trust Funds for both Pueblos totaling
$490 million ($290 million for Jemez Pueblo and $200 million for Zia
Pueblo), to be indexed, that the Pueblos can use to develop water
infrastructure on the two Pueblos as they determine necessary and on
their own timeframe. Monies in the fund can be used by the Jemez and
Zia Pueblos for: planning, permitting, designing, engineering,
constructing, operating, maintaining, and repairing water production,
treatment, delivery infrastructure, and the Augmentation Project;
Pueblo water rights management and administration; watershed protection
and enhancement; support of agriculture; water-related Pueblo community
welfare and economic development; costs relating to implementation of
the settlement; and environmental compliance in development and
construction of infrastructure. The State of New Mexico has also agreed
to contribute just over $20 million to provide for benefits that will
be realized by non-Indian water users, including $500,000 for a fund to
mitigate impairment to non-Indian domestic well and livestock well
users resulting from new or changed Pueblo water uses.
D. Proposed Acoma and Laguna Pueblos Settlement Legislation
Acoma and Laguna Pueblos, the State of New Mexico, and non-Indian
water users executed a settlement agreement earlier this year, setting
out the water rights to be quantified for the two Pueblos and reaching
agreement on other key issues, including the requirements and
parameters of a possible future project to import water to Pueblo
lands. The United States is not a signatory to the 2022 settlement
agreement, nor is the Navajo Nation. The Nation is working with the
parties to achieve settlement on its claims in the Rio San Jose basin.
S. 4898 would resolve all of the Acoma and Laguna Pueblos' water
rights claims in the Rio San Jose basin in New Mexico; ratify and
confirm the water rights settlement agreement among the Pueblos, the
State of New Mexico, and non-Indian water users and authorize the
Secretary of the Interior to sign the settlement agreement; provide
protections for existing non-Indian water users from priority calls by
the Pueblos; require the Pueblos to promulgate Pueblo Water Codes and
ensure that certain uses and changes in use of the Pueblos' water
rights do not impair existing non-Indian water users; and authorize
funds to implement the settlement agreement. In addition, the Pueblos
are conditionally settling their claims in the Rio Salado (Acoma
Pueblo) and Rio Puerco (Laguna Pueblo) basins.
S. 4898 would ratify and confirm the Pueblos' water rights to over
20,000 acre-feet per year (AFY)--7,982 AFY for Acoma Pueblo and 12,263
AFY for Laguna Pueblo--from various surface water and groundwater
resources on each Pueblo. These amounts include 1,300 AFY of future
groundwater use for economic development for each Pueblo.
S. 4898 would also protect non-Indian water users, as the Acoma and
Laguna Pueblos have agreed to not make priority calls for their senior
rights on the water rights of junior non-Indian users in existence at
the time that the settlement becomes enforceable. In addition, the
Pueblos have agreed to promulgate Pueblo water codes, which will govern
permitting of uses of the Pueblos' water rights; provide processes for
protests by parties affected by Pueblo permitting decisions; and ensure
that water use under a Pueblo permit does not impair existing surface
and groundwater rights.
Finally, S. 4898 would establish Trust Funds for both Pueblos
totaling $850 million. Acoma Pueblo would receive $311.75 million, and
Laguna Pueblo would receive $493.25 million, to be indexed, that the
Pueblos can use to develop water infrastructure on the two Pueblos as
they determine necessary and on their own timeframe. In addition, $45
million is to be allocated to both Pueblos jointly to use for repairs
at the existing Acomita Dam.
Of the monies that would go to each Pueblo individually, $40
million could be spent on operation, maintenance, and repair of Pueblo
water infrastructure for domestic, commercial, municipal, and
industrial uses ($14 million for Acoma Pueblo and $26 million for
Laguna Pueblo) and $5 million could be spent on feasibility studies for
water supply infrastructure to serve Pueblo domestic, commercial,
municipal, and industrial water uses ($1.75 million for Acoma Pueblo
and $3.25 million for Laguna Pueblo). The remaining $760 million ($296
million for Acoma Pueblo and $464 million for Laguna Pueblo) could be
used by the Pueblos for: acquiring water rights or water supply;
planning, permitting, designing, engineering, constructing, operating,
rehabilitating, and repairing water production, treatment, or delivery
infrastructure; Pueblo water rights management and administration;
watershed protection and enhancement; support of agriculture; water-
related Pueblo community welfare and economic development; costs
relating to implementation of the settlement; and environmental
compliance in development and construction of infrastructure. The State
of New Mexico has also agreed to contribute just over $36 million to
provide for benefits that would be realized by non-Indian water users,
including $500,000 for a fund to mitigate impairment to non-Indian
domestic well and livestock well users resulting from new or changed
Pueblo water uses.
E. Department of the Interior Position on S. 4896 and S. 4898
The Department of the Interior is pleased to support S. 4896 and S.
4898 but has identified some targeted changes that must be made to
S.4898 to protect allottees. These bills are the result of over three
decades of good-faith negotiations to reach consensus on key issues.
The Department appreciates that each settlement is unique, and its
terms must be tailored to meet the needs of the settling Tribe and
other parties. The Department looks forward to continued discussions,
including with the U.S. Department of Agriculture (USDA), regarding
USDA's role in the settlement agreements with the Pueblos.
S. 4896 and S. 4898 are designed to meet each Pueblos' current and
long-term needs for water by providing Trust Funds to be used by the
Pueblos according to their needs and determinations. Rather than
committing the Pueblos or the United States to construct specific water
infrastructure projects, the bills would allow the Pueblos to make
decisions regarding how, when, and where to develop water
infrastructure on the Pueblos. This approach to settlement is
consistent with Tribal sovereignty and self-determination, and with our
trust responsibilities, and will help to ensure that the Pueblos can
maintain their way of life.
III. The Tule River Reservation and the Tribe
A. Historical Context
The aboriginal territory of the ancestors of the Tule River Tribe,
the Yokuts, encompassed most of what is now the San Joaquin Valley, an
agricultural mainstay in California. The influx of non-Indians into the
Tribe's ancestral lands in the 1850s, after the discovery of gold and
California statehood, created tremendous conflict with the Yokuts and
left them dispossessed, displaced, and without title to a homeland.
The quest to provide a permanent homeland for the Yokuts'
descendants, the Tule River Tribe, was fraught with difficulties and
setbacks. First, the United States attempted to rectify Tribal
dispossession by negotiating the Treaty of Paint Creek, which would
have created the Tule River Reservation in the San Joaquin Valley near
present-day Porterville, California. However, this Treaty, along with
other California treaties, was never ratified by the Senate. The United
States' second attempt to secure a homeland for the Tribe was the
creation in 1856 of the ``Tule River Indian Farm,'' later referred to
the ``Madden Farm,'' out of the public domain. The subsequent patenting
of the farm to an unscrupulous Indian agent deprived the Tribe of title
to those lands.
In 1872, the California Superintendent of Indian Affairs was
ordered to find a reservation for the Tribe. A tract of 48,000 acres of
steep and rocky terrain in the foothills of the Sierra Nevada Mountains
was proclaimed by the Executive Order of January 9, 1873, as the Tule
River Indian Reservation. In 1874, the Indian Agent at the Tule River
Agency described the Reservation as containing ``no first-rate tillable
land'' with only ``about 200 acres of such as might be termed passably
good for agricultural purposes, and that not lying in one body.''
Except for some timber land in the mountains in the extreme east of the
Reservation, the balance of the Reservation was said to be ``utterly
valueless . consisting of rough, rocky mountains.'' Not unsurprisingly,
members of the Tribe were reluctant to leave the productive land they
were farming at the Madden Farm to locate to the Reservation. When, by
1876, only six families had moved to the Reservation, the remaining
Tule River Indians at the Madden Farm were forcibly removed to the
Reservation. Now nearly 150 years later, the Tribe continues to search
for an adequate and secure water supply for the domestic and municipal
needs of its members.
B. The Reservation Today
Today, the Tribe's Reservation remains located on the western slope
of the Sierra Nevada Mountains, in south-central California, 75 miles
south of Fresno and 45 miles north of Bakersfield and is comprised of
over 55,000 acres of tribal trust lands. The topography is generally
steep, with elevations ranging from about 900 feet to 7,500 feet above
sea level. Most of the inhabited land is along the lower reach of the
South Fork Tule River on the western side of the Reservation.
The primary sources of employment on the Reservation are the
Tribe's Eagle Mountain Casino, the Tribal government, and the Tule
River Indian Health Center. The Tribe is in the process of relocating
the Eagle Mountain Casino, due in part to water shortages, to trust
lands in the City of Porterville.
C. Water Resources of the Tule River Reservation
The Reservation is located almost entirely in the South Fork Tule
River drainage basin. Because the Reservation is located in the Sierra
Nevada headwaters of the river, there are no upstream diverters on the
river above the Tribe. The South Fork Tule River, which is the primary
water source on the Reservation, is flashy (flows are high during
spring runoff and decrease during the summer and fall months) and
subject to extended periods of drought. Groundwater is very limited due
to both water quantity and quality issues.
The major water use on the Reservation is for domestic and
municipal purposes. Less than 5 percent of the Reservation is suitable
for agriculture, though some members graze livestock in various
locations. In dry years, which are increasingly common (including this
year), the Tribe has had to truck-in water and donate bottled water to
its members for domestic and municipal purposes due to water shortages,
with members sometimes relying on bottled water for months at a time.
These shortages affect Tribal members in multiple ways, including
precluding them from cooking and bathing or from going to work or
attending school. In the hottest part of summer, the Tribe has to open
its government buildings to provide refuge for elders that rely on
water for the cooling systems in their homes. This lack of reliable
water supply results in interruptions to critical services, including
education programs, emergency services, elder care, and the Tribe's
justice center and government functions. It has also contributed to a
housing shortage that impacts the number of Tribal members who can
reside on the Reservation.
D. Proposed Tule River Tribe Settlement Legislation
Negotiations regarding potential settlement of the Tribe's water
rights claims have been ongoing since 1996, when the United States
established a team to negotiate a comprehensive settlement of all the
Tribe's water rights in California. Over the course of the
negotiations, the United States conducted numerous studies examining
options for water development on the Reservation. The studies point to
water storage as a key component of a reliable water supply.
Relying on these studies, and other studies the Tribe conducted on
its own, the Tribe and the downstream water users reached a 2007
Agreement. That Agreement sets-out water allocation between the parties
and addresses how water release schedules will be determined for any
future water storage project the Tribe may construct on the South Fork
Tule River. The 2007 Agreement identified a possible location for water
storage, and included operational rules for a reservoir at that
location, but allowed the Tribe to choose a different site if the
planned site proved infeasible. The parties agree that the site
initially identified is not feasible. The Tribe's efforts to finalize
plans for an alternative site are ongoing, and the parties have yet to
agree on operational rules for a reservoir at another location of the
Tribe's choosing. It is important to establish these operational rules
to delineate the Tribe's water right. The 2007 Agreement was amended
for technical issues in 2009. The United States is not a signatory to
either the 2007 Agreement or the 2009 technical amendments.
S. 4870 would resolve all of the Tribe's water rights claims in
California; ratify and confirm the Tule River Tribe water rights
settlement agreement among the Tribe and most downstream water users,
and authorize the Secretary of the Interior to sign the agreement;
direct the Attorney General of the United States to file suit in
Federal Court to bind all water users in the basin; authorize funds for
water development projects to implement the settlement agreement; and
transfer various lands into trust for the Tribe.
S. 4870 would ratify and confirm a Tribal water right, which
includes the right to up to 5,828 acre-feet per year of water flows
from the South Fork Tule River, as described in the 2007 Agreement. The
2007 Agreement provided that the Tribal water right would be
administered in accordance with agreed-upon operational rules for the
water storage facility that the Tribe was to build, rather than
according to priority date. If the parties could not agree upon
operational rules, the 2007 Agreement contemplated that the parties
could submit competing proposals to the court, which would be charged
with assessing which proposal better satisfied the criteria set forth
in the Agreement. In addition, the Tribal water right, as described in
the 2007 Agreement and ratified by S. 4870, would also include the
right to divert and use certain amounts of water from springs on the
Reservation and the right to use groundwater on the Reservation,
subject to some restrictions. S. 4870 would also direct the United
States to file suit in Federal District Court in California, for the
purpose of entering a decree approving the Tribe's Federal reserved
water right, consistent with the 2007 Agreement, and binding all water
users in the basin.
S. 4870 would establish a Trust Fund of $568 million, to be
indexed, for the Tribe to develop water infrastructure on its
Reservation, as it determines necessary and on its own timeframe.
Monies in the fund can be used by the Tribe to construct water
development projects ($550 million) and operate, maintain, and
rehabilitate water development projects ($18 million).
S. 4870 also would transfer approximately 825.66 acres of Bureau of
Land Management land, 1,837.46 acres of fee land owned by the Tribe,
and approximately 9,037 acres of Forest Service land to the United
States, to be held in trust for the Tribe. As articulated in Section 6
of Joint Secretarial Order 3403, the Biden Administration strongly
supports returning ancestral lands to Tribes and looks forward to
continuing to work with the Committee and bill sponsors on the overall
land transfer proposal.
E. Department of the Interior Position on S. 4870
The Department supports the components of S. 4870 over which it has
jurisdiction, and the Administration has identified some targeted
changes that must be made to address certain legal issues and ensure
effective implementation of the water rights settlement that it is
intended to ratify. We have worked closely with the Tule River Tribe to
develop amendments that address many of these concerns and we look
forward to providing technical assistance to the Committee to develop
an amended bill. The Department defers to USDA regarding the transfer
of National Forest System lands proposed in S. 4870 including any
implications that may result should a transfer be enacted.
This bill is the result of over two decades of dedicated, good-
faith negotiations to reach consensus on key issues. The Department
appreciates that each settlement is unique, and its terms must be
tailored to meet the needs of the settling Tribe and other parties.
S. 4870 is designed to meet the Tribe's current and long-term needs
for water by providing a Trust Fund to be used by the Tribe according
to its needs and determinations. Rather than committing the Tribe or
the United States to construct specific water infrastructure projects,
S. 4870 would allow the Tribe to make decisions regarding how, when,
and where to develop water infrastructure on its Reservation. This
approach to settlement is consistent with tribal sovereignty and self-
determination, and with our trust responsibilities, and will help
ensure that the Tribe can maintain its way of life on its Reservation.
The Administration has worked with the Tribe on revisions to
certain provisions of the bill to avoid potential impediments to
implementation. There are certain provisions of the 2007 Agreement that
are no longer operative, and negotiated amendments are needed before
the Agreement can be presented to the court for approval.
As explained above, the parties agree that the proposed water
storage facility will not be built at the site identified in the 2007
Agreement and that new operational rules tailored to the new site must
be adopted and incorporated in the Agreement. The current version of
the bill could require the Attorney General to file suit seeking entry
of the 2007 Agreement and approval of the Tribal Water Right before the
parties have the opportunity to agree on the necessary amendments. This
could impermissibly require the United States to file suit before there
is actually a justiciable claim.
These issues can be addressed with revisions to Sections 4 (which
addresses ratification) and 12 (which addresses judicial
enforceability). We recommend that the bill address the need for new
operational rules, rather than ratifying the inoperable provisions of
the 2007 Agreement. We also recommend revising the bill to ensure that
the parties seek approval of the Agreement only after the matter is
ready for judicial resolution.
We also want to note that the 2007 Agreement's lack of a priority
date for the Tribal water right could impair effective implementation
of the Agreement and the bill. We believe that a simple amendment to
the bill would address this issue, while also preserving the
expectation of all interested parties.
We believe that these issues can be resolved in a way that
preserves the expectations of all interested parties--including the
Tribe. Toward that end, we have worked in collaboration with the Tribe
on amended bill language that the Administration would support as a
substitute for the introduced version.
IV. Conclusion
The Department appreciates the dedication of all parties, including
the Pueblos, the State of New Mexico, and the non-Indian water users,
the Tule River Tribe and the downstream water users to these prolonged
negotiations and the willingness of all the parties to reach consensus
on contentious issues. We support the Administration's policy regarding
restoring sovereignty over critical ancestral lands under the control
of the Federal Government, and look forward to work with Congress
regarding these bills.
The Chairman. Thank you very much.
Chairman Peyron, please proceed with your testimony.
Welcome.
STATEMENT OF HON. NEIL PEYRON, CHAIRMAN, TULE RIVER TRIBE
Mr. Peyron. Greetings, Chairman Schatz and Vice Chair
Murkowski, and honorable members of the Committee.
My name is Neil Peyron, Chairman of the Tule River Indian
Tribe of the Tule River Indian Reservation in California. I am
here to deliver the Tule River Tribe's support for S. 4870. I
would like to thank Senators Padilla and Feinstein for
introducing and moving S. 4870 forward, and also Congressman
Kevin McCarthy's office for their continued assistance in the
House.
This bill offers a unique opportunity for all sides of the
political spectrum to achieve success towards meeting the
United States trust responsibility to the Tule River Tribe by
safeguarding access to clean drinking water. The Tule River
Tribe needs water solutions now.
We live in a steep canyon where the river supplies up to 80
percent of our water. But like many western streams, it can run
low or even go dry for months at a time. In 2014, we began
seeing zero flow in the river for months at a time. Without
water, we often have no choice but to pause day to day life and
government operations to seek out, haul and deliver water
throughout the reservation for months at a time.
Currently, the tribe can experience water shortages even if
the river has some water running in it. Every year, the
reservation has run out of water for household use.
When there are outages, people cannot cook, they cannot
bathe, they cannot use modern plumbing. Tribal members must
rely on bottled water for basic needs. They may miss work or
they may miss school. Residents are asked to limit water use or
they will get cited and sent to tribal court if they do not
comply.
Nevertheless, we have adapted. We truck water in. In the
past, members had to use water tanks for basic needs such as
bathing. In the hottest parts of the summer, we open government
buildings to provide refuge for elders who rely on their
evaporative coolers which need water to operate efficiently.
We also have been forced to use bottled water for months at
a time and drill deeper wells. But we have survived. We have
experienced interruptions in critical services like our medical
facility, educational programs, emergency services, elderly
care, our justice center and government functions, and to our
economy in general.
Given the severe drought, we have experienced major fires
in the last decade. If we use our water system to suppress
fire, it completely depletes our supply of water, meaning we
are back into the cycle described above. You can refer to pages
11 and 12 of my written testimony for photographs.
Access to water also impacts our waiting list of 500
members who cannot achieve full membership without establishing
residency on the reservation. They are currently precluded from
doing so because we cannot provide them water. Due to the ever-
increasing water scarcity in the central valley from lack of
snow pack and rain, we vulnerable to wildfire and drought. This
settlement will allow us to create the much-needed storage to
sustain our existence in our ancestral homelands.
The Tribe has been working on this for 51 years to secure
our water. We have spent millions of dollars and countless
hours to get to this point. The legislation provides the best
solution for the Tule River Tribe's water crisis.
The settlement is fund-based, it allows us to build
storage, improve water quality and delivery and ensures a
tribal right of 5,821 acre-feet of water for on-reservation
use. It ratifies a 2007 settlement agreement with state-based
downstream water users, guaranteeing them year-round
deliveries. As a result, it has broad local support.
The legislation returns 9,000 acres of the Tule River
headwater from the Forest Service into trust to be protected by
the Tule River Tribe. It requires a mandatory Federal
contribution of $568 million of which $20 million will be used
to do preliminary work needed to establish the site for the
reservoir. California has already contributed $2 million toward
immediate water access in 2021.
In conclusion, the Tule River Tribe is in a water crisis.
The crisis was compounded by broken treaties, forced removal
from our original reservation and the depth of our land and
failure to uphold the 1922 agreement. The time is right for our
Federal partners to join us in providing the resources
necessary to ensure a sustainable future for the Tule River
Tribe by supporting S. 4870.
We respectfully request the Senate Committee on Indian
Affairs to swiftly mark up and pass S. 4870 for consideration
by the House, so we can look to fulfill passage by the end of
this Congress.
I thank the Committee for the opportunity to fully express
Tule River's support of this bill. I will stand for any
questions. Thank you.
[The prepared statement of Mr. Peyron follows:]
Prepared Statement of Hon. Neil Peyron, Chairman, Tule River Tribe
I. Introduction
Greetings Chairman Schatz, Vice Chairwoman Murkowski, and members
of the Committee. My name is Neil Peyron and it is an honor to appear
before you today. I am a member of the Tule River Indian Tribe (``Tule
River'') located in central California, and I serve as the Chairman of
the Tule River Tribal Council. I come before you today to share Tule
River's greetings, well wishes, and strong support for S.4870, the Tule
River Tribe Reserved Water Rights Settlement Act of 2022.
This bill is fifty-one years in the making. It honors treaty rights
as recognized by Presidential Executive Orders and other commitments
made to Tule River by the United States, and it ensures we have a
sustainable and livable homeland. It represents a historic coming
together of tribal, state, and federal interests to form agreement
around the important, and long-overlooked issue of access to water for
the Tule River people.
I would like to thank Senator Padilla and Senator Feinstein for
their support of Tule River in our efforts to introduce and move this
important legislation. I would also like to thank Congressman McCarthy,
who has worked with us to settle our federal reserved water rights. We
have worked hard to meet the requirements of the Criteria and
Procedures for the Participation of the Federal Government in
Negotiations for the Settlement of Indian Water Rights Claims. We
believe passing this bill into law offers a unique opportunity for all
sides of the political spectrum to achieve success towards meeting the
United States' trust responsibility to the Tule River Tribe by
safeguarding our access to clean drinking water.
This settlement, achieved without the need for costly litigation,
will finalize an agreement by the major water users on the South Fork
of the Tule River, meet the obligations of the United States to protect
and develop a permanent homeland for Tule River, and provide certainty
to the water users in Central California that utilize the Tule River
basin. It will also provide Tule River with the wet water it needs for
its community after a decade of extreme drought brought on by climate
change. This bill reconciles over 100 years of the effects of forced
removals on the Tule River people, even at gunpoint, and the unratified
1851 Treaty of Paint Creek relied upon by our people. \1\ The history
of Tule River, and our forced removal onto the reservation, tracks the
troubled history of the United States and its relations with native
people. But the history in California is one of the darker pages for
the United States. \2\ This legislation offers a unique opportunity to
correct some of these past wrongs.
---------------------------------------------------------------------------
\1\ Frank, Gelya and Carole Goldberg, Defying the Odds: The Tule
River Tribe's Struggle for Sovereignty in Three Centuries, p. 54, New
Haven and London: Yale University (2010). Available at the National
Indian Law Library (NILL) at the following link: https://
nill.softlinkliberty.net:443/liberty/
OpacLogin?mode=BASIC&openDetail=true&corporation
=NARF&action=search&queryTerm=uuid%3D%225c659d6f0af12b193f2f1f287
c6e356b%22&operator=OR&url=%2Fopac%2Fsearch.do).
\2\ See Castillo, Edward D. (Cahuilia-Luiseno), State of California
Native American Heritage Commission, California Indian History, ``Short
Overview of California Indian History,'' https://nahc.ca.gov/resources/
california-indian-history/ (last accessed Sept. 28, 2022).
---------------------------------------------------------------------------
II. History of the Tule River Reservation and the Struggle of Tule
River to Secure a Sustainable Homeland
A. The Unratified Treaty of Paint Creek
The Tule River Reservation is part of our ancestral homeland. We
are Yokuts Indians and have occupied the San Joaquin Valley in
California for thousands of years. Following the discovery of gold in
the late 1840s, there was massive immigration into California from the
eastern United States. In the first two years of the gold rush, it is
estimated that 100,000 native people were killed. \3\
---------------------------------------------------------------------------
\3\ Id.
---------------------------------------------------------------------------
To legally obtain the lands that the Tribal Nations held, the
United States negotiated 18 treaties with native people in California.
One such treaty was the Treaty of Paint Creek that was signed on June
3, 1851. In that Treaty our ancestors reserved large tracts of land for
our people. With California statehood and the desire for gold, however,
there was enormous pressure on Congress to reject the 18 treaties
negotiated with the Tribal Nations in California. Congress yielded to
this pressure and in 1852 rejected the 18 treaties, including the
Treaty of Paint Creek. The treaties were subsequently placed under an
order of secrecy and hidden in the Senate's records for over 50 years.
\4\ Our ancestors were never informed the treaties we negotiated with
the federal government were not ratified.
---------------------------------------------------------------------------
\4\ See Miller, Larisa K., ``The Secret Treaties with California's
Indians,'' Archives, Hoover Institution at Stanford University, (2013),
https://www.archives.gov/files/publications/prologue/2013/fall-winter/
treaties.pdf (last accessed Sept. 28, 2022).
---------------------------------------------------------------------------
Below is a map of the lands our ancestors reserved for our people
in the Treaty of Paint Creek, which includes much of the agricultural
hub of the central valley in California. (See also Exhibit A, which
provides a timeline of significant events for the water rights of the
Tule River Tribe.)
Figure 1: Map depicting area of traditional cultural affiliation
for the Tule River Tribe of Yokut Indians as well as the lands ceded
and retained in the Paint Creek Treaty of 1851. *
---------------------------------------------------------------------------
* The Figures, images, and attachments to this prepared statement
have been reviewed and retained in the Committee files.
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B. Establishment of the Original Reservation through Fraud
After failing to ratify the treaties, Congress established the
Superintendency of Indian Affairs in California in 1853 to relocate
Indians to reservations. In 1856, the California Superintendency
established our reservation pursuant to the 1853 authority, on
approximately 2,440 acres of prime San Joaquin Valley farmland in
Tulare County. The southwest corner of the land was transected by the
mainstem of the Tule River. It included part of what is today the
eastern portion of the City of Porterville. Despite being significantly
smaller than what was reserved in the treaty, the location of this
original Reservation was selected by the federal government to provide
Tule River with the arable land and water resources needed to establish
a self-sufficient homeland for our people.
Upon being promised this land as our homeland--ostensibly forever--
we built homes and began to actively cultivate crops. Despite our
relative prosperity in those years, two of the federal Indian agents
assigned to reservations in the area decided to capitalize on the
distance and ignorance of the officials in Washington, D.C. Thomas
Madden, a federal Indian agent assigned to the neighboring Tejon Indian
Reservation, applied for, and was issued a fraudulent public land
school warrant for 1,280 acres of the Tule River Reservation from the
State of California. \5\ Four years later, and under a similar illegal
arrangement, a land warrant for 1,160 acres of Tule River Reservation
was issued to Mr. John Benson, another Indian Agent. These two state
land warrants encompassed all our Reservation lands.
---------------------------------------------------------------------------
\5\ Frank, Gelya and Carole Goldberg, Defying the Odds: The Tule
River Tribe's Struggle for Sovereignty in Three Centuries, p. 41-55,
New Haven and London: Yale University (2010). Available at the National
Indian Law Library (NILL) at the following link: https://
nill.softlinkliberty.net:443/liberty/
OpacLogin?mode=BASIC&openDetail=true&corporation=
NARF&action=search&queryTerm=uuid%3D%225c659d6f0af12b193f2f1f287
c6e356b%22&operator=OR&url=%2Fopac%2Fsearch.do).
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The federal government was fully aware that these lands were
expressly reserved to us, but it made no effort to challenge the Madden
and Benson land warrants--despite an investigation in 1858 confirming
the fraudulent nature of the agents' land claims. Because the lands had
been set aside for the Tribe, the State of California had no legal
basis upon which to issue the warrants. The land transfers were also a
violation of the federal Trade and Intercourse Act, which expressly
prohibited Indian agents from having ``any interest or concern in any
trade with the Indians,'' Indian United States v. Hutto, 256 U.S. 524,
525 (1921), and prohibited the sale of Indian lands except by treaty.
25 U.S.C. 177. Instead of setting aside the issuance of these
warrants, the federal government actually paid rent to Agents Madden
and Benson for at least a dozen years to enable our ancestors to
continue farming what was our land. \6\
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\6\ J. B. Vosburgh to CIA, September 4, 1875, Annual Report of the
Commissioner of Indian Affairs (ARCIA), 1875, HED l, 44th Congress, 1st
Session, serial l680, p. 730-731.
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Gradually, over the years, hostility increased in general between
the Indian farmers and the settlers in the area. In response to the
tension, and rather than enforcing our rights to what was our
Reservation land, in January 1873, President Grant issued an Executive
Order creating a new reservation for the Tule River Tribe. It was
comprised of mostly mountainous, rocky lands located about fifteen
miles to the east of our original Reservation. The Tule River Indians
and the Indian agent at the time, Agent J.B. Vosburgh, protested the
forced removal as the new lands would be difficult to cultivate. Figure
2: Map depicting the Tyler/Benson and Madden Farms in relation to
current Tule River Reservation.
Agent Vosburgh, stated in his annual report to the Commissioner of
Indian Affairs:
There was very little to be seen at the new agency to commend
it for the purposes to which it was set apart. . . By far the
most valuable part of the reserve is upon the mountains in the
extreme eastern portion, where there are extensive forests of
pine available for the production of lumber, which would find a
ready market among the settlers on the plains below. \7\
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\7\ J. B. Vosburgh to CIA, September 9, 1874, ARCIA, 1874, House
Executive Document HED 1, 43rd Congress, 2nd Session, serial 1639, p.
623. Note: The acreage figure that Agent Vosburgh reflects the acreage
in the January 9 executive order and not the acreage for the October 3,
executive order that enlarged the reservation.
He further requested that the government inquire into the legality
of the Madden and Benson land warrants and, if necessary, requested the
federal government purchase the property from them for the benefit and
use of the Indians.
No such action was taken by the federal government, and our people
were forcibly removed from their homes and cultivated fields. The
removal was very hard on our people. One tribal member alive then, Mary
Santiago, who was born about 1859 and participated in the removal,
recalled hiding in a cave as she and her brother ``watched soldiers run
over women and children killing some, cutting down their jerky lines,
burning their tule huts that they lied in. Mostly killing men and young
boys.'' \8\ The new Reservation, while it contained 48,000 acres, was
determined by the federal agents, based on the knowledge and technology
of the time, to be insufficient to provide for us. An Indian agent
reported, year-by-year our number had decreased by death and removal,
until at this point there were only 143 Indians, embraced in 39
different families, residing on the reservation. \9\
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\8\ Frank, Gelya and Carole Goldberg, Defying the Odds: The Tule
River Tribe's Struggle for Sovereignty in Three Centuries, p. 54, New
Haven and London: Yale University (2010). Available at the National
Indian Law Library (NILL) at the following link: https://
nill.softlinkliberty.net:443/liberty/
OpacLogin?mode=BASIC&openDetail=true&corporation=
NARF&action=search&queryTerm=uuid%3D%225c659d6f0af12b193f2f1f287
c6e356b%22&operator=OR&url=%2Fopac%2Fsearch.do).
\9\ H.R. 123, H.R. 2498 and H.R. 2534, Legislative Hearing before
the Subcommittee on Water and Power of the Committee on Natural
Resources, U.S. House of Representatives, 110th Congress, 1st Session
(Sept. 25, 2007), Serial No. 110-45, Testimony of Kenneth McDarment on
behalf of the Tule River Tribe of California In Support of H.R. 4685,
the Tule River Indian Reservation Land Trust, Health, and Economic
Development Act; citing Reports of Agents in California, Tule River
Agency, The Commissioner on Indian Affairs, United States Indian Agent
C.G. Belknap (August 11, 1883) 18-20.
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Our situation was so dire that, in response, President Grant, in
October 1873--just nine months after the initial Executive Order--
signed another Executive Order almost doubling the Reservation's size
to 91,837 acres. \10\ In August 1878, President Hays issued yet another
Executive Order unlawfully reducing the reservation back to the January
1873 size of 48,000 acres.
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\10\ Id.
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Figure 3: 1873 and 1878 Reservation Boundaries created by Executive
Order.
C. The 1922 Agreement
The only known adjudication of water rights on the South Fork of
the Tule River is Poplar Irrigation Co. v. A.A. Howard, No. 7004, Book
14, page 195, Superior Court of Tulare County, State of California,
Dept. No. 2 (1916). In the proceedings, the U.S. created uncertainty
when it failed to consider, evaluate, or defend any potential pre- 1873
claims of the Tule River Tribe to the South Fork of the Tule River.
Without involvement or consent from the Tule River Tribe, the court
found that the South Tule Independent Ditch Company (STIDC) had the
most senior rights, dating from 1854. The Court never made the Tule
River Tribe a party to the case despite their clear water right
interests.
In 1922 the United States perpetuated this error and, in violation
of their trust duties to the Tribe, the Secretary of the Interior,
acting on behalf of the Tule River Tribe, entered an agreement with
STIDC to ensure certain water deliveries reached STIDC's diversion
without the Tribe's consent (Exhibit B). The Agreement apportioned the
flow of the South Fork of the Tule River under low flow conditions that
guaranteed water to STIDC, even when doing so would not benefit the
Tribe.
Further, in the 1922 Agreement the United States promised to
develop Tule River's reservation with the utilization of a permanent
water right. The United States, however, has not fulfilled its
obligation to fully develop the reservation or the water resources
necessary to make the reservation a permanent homeland. We continue to
live under the terms of the 1922 Agreement today. We have honored the
obligations made by the United States while receiving little to none of
the benefits promised.
For over a century, we have lived on the Reservation established in
1873, a mountainous land where, because of the failure of the United
States to provide adequate water storage and irrigation facilities, we
have been unable to fully achieve the agricultural homeland promised to
us in the Paint Creek Treaty and partially performed in our original
1856 Reservation. The Tule River people are a proud people, and I tell
this story not to complain or to blame anyone for these past
injustices. They do, however, show that it is appropriate for the
United States to now begin the reconciliation and healing process
through enactment of S. 4870. This legislation will enable the Tule
River Tribe to bring water to our lands in sufficient quantities to
make our reservation a viable homeland now and forever.
III. Overview of Reservation and Need for Water
A. The Reservation and Water Resources
The current Tule River Indian Reservation is located along the
border of the Central Valley of California just outside the town of
Porterville in the rugged Sierra Nevada mountains. The Reservation's
eastern boundary abuts the Forest Service's Giant Sequoia National
Monument. Just downstream is the Army Corps of Engineer's Lake Success,
a dammed water body used for flood control and downstream irrigation,
which is fed by the Tule River.
The topography of the Reservation is generally steep, with
elevations ranging from about 900 to 7500 feet above sea level. Most of
the inhabited land is along the lower reach of the South Fork of the
Tule River on the western side of the Reservation. The South Fork of
the Tule River runs through the Reservation, which then flows into the
Tule River at Success Reservoir, about ten miles west of the
Reservation. There are no significant uses of water upstream of the
Reservation.
Figure 4: Map of Tule River Reservation and surrounding landmarks
(See also Exhibit C).
The South Fork provides the Tribe with about 80 percent of its
water. It flows through the Reservation and is subject to the Tule
River Tribe's federal reserved Indian water rights. However, our Tribe
is unable to use most of the river flow. To make use of the water in a
meaningful way, it must be captured and stored, as the river runs low
or even goes dry several months of the year. The hydrology of the South
Fork is like most western rivers in that the flows are generally much
higher in the spring months than the rest of the year. The hydrology of
the South Fork is also marked by periods of drought during which the
entire flow of the river is significantly reduced for long periods of
time, sometimes spanning several years. These two general
characteristics are depicted on the two graphs attached to this
testimony. (Exhibit D).
The measured average annual flow of the South Fork Tule River at
the western boundary of the Reservation is 25,080 acre-feet per year.
However, its flow is dependent on snowmelt and runoff. In 2014 there
was zero flow in the South Fork for the first time in living memory,
which lasted for 85 days. In 2015 the river was dry again for 97 days,
and in 2021 it was dry for 93 days. The Tribe experiences water
shortage even if the river has water running in it and every year the
Reservation runs out of water for household use.
The water resources available to Tule River consist of the flow
from the South Fork Tule River and its tributaries on the Reservation,
as well as very limited groundwater resources. The existing supplies
from the river and wells do not serve the current needs of the
community on the Reservation. There are growing concerns about the
long-term reliability of these sources, both in terms of quantity and
quality.
B. The Impacts of the Lack of Water on Tule River
Tule River, like so many native nations, is plagued by unemployment
and mortality. As recently as March of 2022, the estimated poverty rate
on the Reservation was still 56 percent higher than Tulare County as a
whole. \11\ Our median household income is $39,750, and we have a 16.1
percent unemployment rate. \12\ That said, we are proud that 79.9
percent of our people graduate from high school, though very few, only
1.4 percent, go on to achieve their bachelor's degree or higher. \13\
To this day, Reservation residents generally continue to suffer from a
relatively low standard of living due in large part to the absence of
an adequate and reliable potable water supply and system.
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\11\ California Department of Social Services, Executive Summary,
All County Letter No. 22-28 (April 8, 2022) (available at: 2021 50
Percent Unemployment Exemption ACL (ca.gov)); see also Bacon, David.
``Tulare County During the Pandemic--The Hard Price of Poverty,''
Capital & Main (August 3, 2020) (available at: Tulare County During the
Pandemic--The Hard Price of Poverty (capitalandmain.com)).
\12\ United States Census Bureau, My Tribal Area, Tule River
Reservation and Off- Reservation Trust Land, 2016-2020 American
Community Survey 5-Year Estimates (available at: https://
www.census.gov/tribal/?aianihh=4300).
\13\ Id.
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Every year, our tribal members have gone without access to water
for basic needs. When there are outages people cannot cook, or bathe,
and Tribal Members must rely on bottled water for basic needs. They may
miss work and/or school. Residents are asked to limit water use and not
use water for landscaping. Nevertheless, we've adapted. We truck water
in, drill deeper wells, and in the past members have been forced to use
water tanks for basic needs such as bathing, and drinking donated
bottled water for months at a time. In the hottest parts of the summer,
we open government buildings to provide refuge for elders who rely on
water for their swamp coolers. But we've survived.
To do so we experience interruptions in critical services like
education programs, including the Towanits Elementary Sschool,
emergency services, elderly care, justice center and government
functions, as well as the economy in general. Given the severe drought,
we have had major fires in the last decade. (See Exhibit E). Last fall
the Windy Fire of 2021, burned 97,528 acres of the neighboring Sequoia
National Forest and 19,325 acres of our Reservation. When we utilize
our water system to suppress fire, it completely depletes our supply of
water, meaning we are back into the cycle described above.
Image 1: Tribal Members bathing from water tanks.
Image 2: Dry South Fork of the Tule River.
Images 3 & 4: Wildfire smoke and flames on Tule River Reservation.
Lack of access to water also means we cannot fully serve all our
tribal membership that wish to reside on their homelands on the
Reservation. We have a waiting list of over 500 candidates and land
ready for development for their housing needs. All we lack is water.
We are extremely vulnerable to the ever-increasing water scarcity
of the Central Valley. The Sierra Nevada snowpack is expected to
decline by as much as 90 percent by the end of the century if heat
trapping emissions continue to rise at today's levels. \14\ S. 4870
offers both a drought mitigation plan and a climate impact reality
check. This settlement will allow us to create the much-needed storage
to sustain our existence in our ancestral homelands.
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\14\ National Oceanic and Atmospheric Administration (NOAA),
National Environmental Satellite Data and Information Service, ``Sierra
Nevada Snowpack on the Decline'' (March 2, 2020), Sierra Nevada
Snowpack on the Decline NESDIS (noaa.gov).
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IV. Overview of Legislation
We spent over twenty years studying how to best harness the water
of the South Fork Tule River to meet our Tribe's needs. From a water
needs assessment to a water allocation model, from a groundwater
investigation to a water quality impact study for stored water, from
creating a physical model of our Reservation to hydrologic studies and
biological evaluations of a reservoir project, from dam cost
comparisons to analysis of water supply alternatives, from an
engineering geologic inspection of potential dam sites to a value
planning study, and from an appraisal level dam project technical
evaluation report to a hydrology and yield analysis, we have worked
hard to objectively and thoroughly understand our water needs,
potential solution options, and the costs involved. (Exhibit F). With
help from the Bureau of Reclamation, we concluded that a reservoir that
can store up to 5,000 acre-feet is the most realistic and cost-
effective option to us, which will net the greatest benefit through the
least amount of harm.
A site just downstream of the confluence of the South Fork of the
Tule River with one of its tributaries, Lower Bear Creek, was
identified as the most likely and optimal location. This site is
geologically robust, with granite rock, steep unvegetated slopes, and a
narrow canyon cross-section. The site will also allow for access and
construction staging areas. \15\ In addition to the reservoir and raw
water transmission mainline, the project will also improve and update
existing delivery and water treatment systems. \16\ Storing the water
of the South Fork will also make it possible for us to consistently
deliver water downstream to state-based water users. We spent fourteen
years negotiating with the downstream water users, STIDC and the Tule
River Association (TRA). As a result of our work together, in 2007 we
came to a settlement agreement (``2007 Agreement'') with STIDC and TRA,
which is reflected in the terms of S. 4870. The 2007 Agreement offer
flexible and realistic terms and provide built-in mechanisms to ensure
fairness. The settlement reached with TRA and STIDC in 2007 was
achieved without costly litigation that could otherwise lock up the
invaluable water in the Tule River basin for decades.
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\15\ Id. at 6.
\16\ Id. at 7.
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The 2007 Agreement and accompanying S. 4870 legislation respects
existing downstream water rights as agreed to by all the parties, and
thus benefits everyone. The Tule River water storage project will
capture early season runoff and make it available year-round, creating
consistency for not only our Reservation water users, but also the
state-based water users downstream. The operation rules for the future
Tule River water storage project will mandate minimum releases for the
benefit of downstream users. In addition, the Tribe will limit our use
of river flow during what is typically the drier portion of the year to
account for downstream uses. The Tribe will rely primarily on reservoir
storage, which is filled during the high-flow season. In addition,
storing water in the future reservoir can also allow it to be used to
enhance downstream flows during dry periods. The Tribe will also share
water shortages with the downstream users during dry years. Finally,
the settlement includes provisions for record keeping, inspections, and
cooperative technical decisionmaking, which will be to everyone's
benefit by increasing accuracy and thereby the wise use of water.
Based on a Bureau of Reclamation technical evaluation report, the
Tribe has estimated the reservoir would likely cost $568 million for a
roller-compacted concrete dam, road improvements, raw water
transmission line, water treatment plant expansion, expanded
distribution system, and operation, maintenance, and replacement costs.
\17\ As this is a fund-based settlement, with a one-time payment, the
Tribe is taking on considerable risk due to the rapidly increasing
material and construction costs we have recently witnessed.
Improvements to the downstream Schaffer Dam at Lake Success Reservoir,
which entail widening the dam's spillway and improving flow control,
are expected to total $135.5 million alone. \18\
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\17\ Bureau of Reclamation, ``Tule River Indian Water Rights
Settlement--Technical Evaluation Report'' 53-61 (September 2016).
\18\ 18 Gutierrez, Danielle, ``Second Phase of Schafer Dam has
Begun'' The Sun Gazette (August 22, 2022) https://thesungazette.com/
article/news/2022/08/27/secondphase-of-schafer-dam-project-has-begun/.
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Given the risk, the Tribe seeks the funding on a mandatory basis,
with part of the funding ($20 million) available immediately to allow
technical studies and investigations still needed to determine exactly
where to build the reservoir. While Indian water right settlements have
sometimes been subject to discretionary spending, according to the
Congressional Research Service, ``Congress also has authorized
mandatory funding for Indian water rights settlements.'' \19\ Seeking a
mandatory amount now will proactively prevent a backlog of U.S. moneys
owed later. And it will reduce the cost, expense, and time for all
involved in repeatedly seeking an appropriation from Congress in the
future. What's more it will allow the Tule River to begin the long-
overdue work of securing a water source for its people immediately.
With the passage of S. 4870 our water crisis will end in 2022.
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\19\ Congressional Research Service, ``Indian Water Rights
Settlements'' (Updated January 18, 2022) https://
crsreports.congress.gov/product/pdf/R/R44148. The report discusses each
type of source of mandatory funding in greater detail.
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Our bill also includes a transfer of land into trust of
approximately 825 acres from the Bureau of Land Management,
approximately 1,837 acres of tribally owned fee land, and approximately
9,000 acres from the Giant Sequoia National Monument for Tule River.
The Giant Sequoia lands are at the headwaters of the South Fork of the
Tule River and their management is critical to the success of the
proposed reservoir. Just last fall the Windy Fire burned 34 percent of
our 55,356-acre Reservation. Runoff from the burn area could create a
siltation overload in the reservoir and highlights the need for
reforestation efforts and ongoing management, which the Tribe is poised
to provide with over a thousand years of experience in observing and
understanding the ecosystem and developing sustainable management
techniques. We are currently engaged in negotiations with the USDA and
Sequoia National Forest to establish better and more formal co-
stewardship provisions that will complement the land transfer. (Include
MOU as an Exhibit?). What's more, the reservoir will provide more
immediate access to an emergency water supply in the face of wildfire
to the benefit of all landowners and managers in the area.
The land transfer will redress the failure of the United States to
honor promises of a forever homeland for the Tule River Tribe. It will
more accurately account for the land lost to the Tribe because of the
past fraudulent land warrants and because of the U.S. decision to
relocate the Tribe to our current location. And it will reunite us to
an area sacred to our people. With the transfer of the land back to the
Tule River's direct use and management, the Tribe will also be able to
protect its main source of water more fully--the South Fork of the Tule
River.
V. Conclusion
The Tule River Tribe is in a water crisis. The crisis was, in part,
created by broken promises and previous failures of the United States
to act. Had action been taken even as far back in the 1870s to address
this situation, we would not be here today. Let us delay no longer. The
time is as ripe as it will ever be for our federal partners to join us
in providing the resources necessary to ensure a sustainable future for
the Tule River Tribe by supporting S. 4870.
We respectfully request that the Senate Committee on Indian Affairs
swiftly mark up and pass S. 4870 for consideration by the House. I
thank the Committee for the opportunity to fully express Tule River's
support of this bill.
Senator Murkowski. [Presiding.] Thank you, Chairman Peyron.
We next turn to Governor Loretto. Welcome.
STATEMENT OF HON. RAYMOND LORETTO, DVM, GOVERNOR, PUEBLO OF
JEMEZ
Mr. Loretto. [Greeting in native tongue.] Good afternoon,
Chairman Schatz, Vice Chairman Murkowski, and distinguished
Committee members. Thank you for this opportunity to testify in
support of Senate Bill 4896, the Pueblos of Jemez and Zia Water
Rights Settlement Act of 2022. I am Raymond Loretto, the
Governor of the Pueblo of Jemez.
The Pueblo extends special greetings, our respects and our
gratitude to our distinguished Senators and champions from New
Mexico, Senator Martin Heinrich and Committee Member Ben Ray
Lujan. We also want to recognize the significant contributions
of the State, the non-Pueblo parties, and the Federal team in
making this settlement a reality.
We are a federally recognized tribe located 45 miles
northwest of Albuquerque. Our 3,800 tribal members primarily
reside on the Pueblo. We have maintained our traditional ways
of life, supported by strong cultural practices, deep spiritual
values and our Towa language, a language only we speak.
For centuries Jemez has been an agricultural community. Our
people are subsistence farmers producing traditional crops as
well as crops needed to feed our livestock. Our farmers rely on
water from the Jemez River, which flows south through the
Pueblo.
The Jemez River also recharges the alluvial aquifer from
which the Pueblo draws its drinking water. Indeed, the River
supplies water for a wide variety of Jemez uses, including
domestic, municipal, economic development, livestock, wildlife,
and fisheries. The waters of the Jemez River Basin also support
plant and animal species native to our area, and the Pueblo has
relied on these culturally significant resources since time
immemorial.
In 1983, the United States brought litigation to protect
the Pueblo water rights in the Jemez River Basin in a case
known as U.S. v. Abousleman. Implementation of our settlement
agreement is crucial to the Pueblo's long-term well-being. It
recognizes our rights based on time immemorial priorities, and
serves to protect our access to water to sustain our
agricultural practices and livestock needs, to provide water
for current domestic, commercial, municipal and industrial use.
The key to our settlement is funding for the development of
wells for both Jemez and Zia to provide groundwater to reduce
reliance on surface water from the Jemez River. Development of
these wells will help avoid conflicts between the Pueblos and
non-Indian water users over access to increasingly scarce
surface water, and will protect and strengthen relationships
among the community of water users in the Jemez River Basin.
The settlement also provides for Federal funds so that my
Pueblo can improve our irrigation infrastructure, improve our
water and wastewater infrastructure, better protect the
watershed, and promote water-related Pueblo community welfare
and economic development projects.
For Jemez, the settlement projects will bring income to the
Pueblo members, bring revenues into the tribal government from
construction projects, will provide state-wide economic
benefits for other businesses that will be involved in the
Pueblo's projects. These opportunities will decrease the Jemez
Pueblo's 40 percent unemployment rate and bring needed revenues
into Pueblo households.
But we are so proud to underscore that the settlement
agreement also serves the needs of our neighbors as well. The
settlement will benefit upstream water projects, help augment
surface water supplies to guard against the effects of climate
change, and provide a reliable supply of much needed irrigation
water for the surrounding communities.
For nearly 40 years, the Jemez Pueblo has engaged in good
faith negotiations. We have invested an incredible amount of
time and resources in this effort. We are not a wealthy tribe;
we do not have casinos or vast energy resources. Instead, water
is the key to our long-term health and stability and cultural
preservation.
Nothing has made this clearer than the recent COVID 19
pandemic. Access to clean water was an essential component of
preventing the spread of the disease, and our Pueblo continues
to incur significant costs associated with the construction of
new water lines to ensure access to clean water.
We need your help to ensure that we will be able to
actually benefit from our water rights to secure the future for
our Pueblo members, accommodate the future growth of our
population, and realize the full economic potential of our
tribal homelands. This settlement is crucial to our ability to
preserve ancient agricultural and other practices critical to
our cultural survival.
We ask that this Committee do everything in its power to
move Senate Bill 4896 swiftly towards passage.
I stand for any questions.
[The prepared statement of Mr. Loretto follows:]
Prepared Statement of Hon. Raymond Loretto, DVM, Governor, Pueblo of
Jemez
My name is Raymond Loretto. I have the honor of serving as Governor
of the Pueblo of Jemez. On behalf of our Pueblo, I thank you Chairman
Schatz, Vice Chairman Murkowski, and distinguished Members of the
Senate Committee on Indian Affairs for this opportunity to provide the
Pueblo of Jemez's testimony urging swift passage of legislation to
implement our historic water rights settlement. The Pueblo extends a
special greeting and our respects to our Senator from New Mexico, the
Honorable Ben Ray Lujan. The Pueblo also wants to thank Honorable
Senator Martin Heinrich for introducing this legislation in the Senate,
and to Representatives Teresa Leger Fernandez and Melanie Stansbury for
introducing companion legislation in the House.
Introduction
Since time immemorial, we, the Jemez people (traditionally
pronounced as ``He-mish'') have maintained our traditional and distinct
way of life supported by strong cultural values, deep religious respect
and our Towa language, a language only we speak. The unique Towa
language is spoken by 91 percent of our members.
We are a federally recognized Indian tribe and one of the twenty
Pueblos in present-day New Mexico and Texas. Our Reservation is located
45 miles northwest of Albuquerque in central New Mexico with a land
base totaling more than 89,000 acres. Our Reservation is composed of
three large parcels, the original Jemez Pueblo grant, Ojo del Espiritu
Santo grant, and the Canada de Cochiti grant. These lands are
agricultural, grazing and forest lands. Jemez Pueblo is the gateway to
the popular Jemez Mountains, a designated National Recreation Area and
gateway to the Pueblo's ancestral lands in the Valles Caldera National
Preserve now under the management of the National Park Service. Both
federal areas are carved from lands that are within our traditional
ancestral territory.
Brief History of the Pueblo of Jemez
Jemez Pueblo has a unique history different from the rest of the
Pueblos in New Mexico. Jemez Pueblo is one of two Towa speaking
Pueblos. At the time of the Spanish Entrada in New Mexico there were
two Towa Pueblos, both recognized by the Spanish government--Jemez
Pueblo and Pecos Pueblo. Pecos Pueblo was located northeast of Santa
Fe, New Mexico just downstream from the headwaters of the Pecos River,
and between two major Spanish settlements--Santa Fe and Las Vegas--
placing it on various trade routes of Indian and non-Indian groups from
the Plains into the Rio Grande Valley. The two Pueblos were
agricultural communities located in separate river basins, living and
farming on lands used by them since time immemorial. While the Jemez
Pueblo survives to the present day, the people of Pecos Pueblo were
forced to leave their lands due to many factors, including trespasses
to their lands and waters as well as a significant drop in population.
By 1838 there were only seventeen surviving Pecos members and these
people moved to Jemez to join their Towa brethren for protection and
survival. The historic record is clear that the move to Jemez was not
an abandonment of the Pecos Pueblo by its people. By 1929 the Pecos
descendants were estimated to be up to 250 people. In 1933, Jemez and
Pecos requested of Congress that they be merged into just the Pueblo of
Jemez which was achieved in 1936 by congressional act. \1\ Today,
several Jemez Pueblo members descend from those seventeen survivors,
and the traditions and religious practices brought over by the Pecos
survivors are practiced and carried on in Jemez Pueblo.
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\1\ The Act of 19 June 1936, 49 Stat. 1528.
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Tribal Government
Jemez Pueblo is governed by the Jemez Tribal Council, the Governor
and two Lieutenant Governors. The Governor represents the Pueblo of
Jemez as an official Head of State and is the Chief Executive Officer
of the Pueblo. The Governor, Lieutenant Governor and Second Lieutenant
Governor are appointed at the start of each year by religious leaders
and entrusted sole authority to oversee and carry out all secular
duties and responsibilities of the tribal government. Our government
also contains many active government services agencies such as our
Tribal Administration, Natural Resources Department, Planning and
Transportation, Tribal Courts, Police Department, Education Department,
Public Works, Realty and Jemez Health and Human Services.
Jemez Pueblo became a Self-Governance tribe in 2013 under the
Indian Self-Determination and Education Assistance Act which enabled
tribes to contract with the United States for administration of certain
federal programs. See 25 U.S.C. 5301-5423.
Pueblo Members
The number of enrolled tribal members as of September 30, 2022 is
3,844. Most of our Pueblo members reside in the Pueblo Village
traditionally known as ``Walatowa'' (a Towa word meaning ``this is the
place''). In addition to our tribal members, non-tribal members living
on the pueblo who are residing on the pueblo by marriage, adoption or
through family relations. Some of our tribal members live off the
reservation in the neighboring non-Indian communities of San Ysidro,
Ponderosa, Canon and in the City of Rio Rancho. Others live in
Albuquerque and Santa Fe. Since time immemorial the Jemez people have
maintained their traditional way of life, a life supported by strong
agricultural values and deep cultural respect. For many centuries Jemez
has been an agricultural community and will continue to be as these
practices are passed on to our children. The farmers are subsistence
farmers producing traditional crops such as chili, corn, squash melons
and other vegetables but are also livestock owners expanding their
irrigation practices to growing alfalfa, oats and grass for livestock
feed.
The Jemez River Basin
The main water feature for the Pueblo of Jemez is the Jemez River
whose headwaters are in the Valles Caldera National Preserve. The main
tributary streams in the Valles Caldera National Preserve are San
Antonio Creek and the East Fork Jemez River that join to form the Jemez
River mainstem. The Jemez River flows south through the Canon de San
Diego, between the Jemez Mountains and the Nacimiento Mountains to
Jemez Springs, and continues south through the canyon to its confluence
with the Rio Guadalupe, near Canones and Canon. From there the Jemez
River runs through the Pueblo Village providing water for the farmers
and recharges the alluvial aquifer from which the pueblo draws its
drinking water. Vallecito Creek, an ephemeral stream, joins the Jemez
River above and near Jemez Pueblo. At the south boundary of the Jemez
Pueblo grant, the Jemez River continues into the non-pueblo community
of San Ysidro and couple of miles to the south of San Ysidro, the Jemez
River enters the Zia Indian Reservation and is joined by the Rio
Salado, about four miles upstream from Zia Pueblo. The Jemez River
continues southeast and enters the Santa Ana Pueblo reservation passing
by Santa Ana to its confluence with the Rio Grande just north of the
town of Bernalillo.
Today, the Jemez River (and hydrologically connected groundwater)
does not only supply water for irrigation on the Pueblo; it supplies
water for a wide variety of tribal uses including, but not limited to
domestic, municipal, economic development, livestock, wildlife,
fisheries, and other natural resources in the River Basin. The waters
of the Jemez River Basin also support a complex ecology that Jemez has
used in the past and continues to use today for many sacred and
culturally significant resources that exist because of the river and
the groundwater.
Brief History of Settlement Negotiations
The United States originally filed the Abousleman litigation in
1983 to protect the water rights of the Pueblos of Jemez, Zia and Santa
Ana; parties in the litigation included the State of New Mexico and
non-Indian parties the Jemez River Basin Water Users Coalition and the
San Ysidro Community Ditch Association. In 1993 the Department of
Interior appointed a Federal Negotiation Team to assist the Pueblos in
their pursuit of a negotiated settlement. In 1994 the Jemez Pueblo
Tribal Council adopted a resolution confirming its desire to engage in
settlement negotiations in the Abousleman case. Settlement negotiations
in the case began more seriously in March 1996, when Mr. Brian James,
attorney for the New Mexico State Engineer's office invited the United
States and the three Pueblos to the negotiation table.
Negotiations were catalyzed in 1996 when the Pueblos filed a
``Priority Call'' on the non- Indian water users within the basin.
Negotiations continued for several years with the parties agreeing on
Settlement Principles which became the framework for the negotiations.
With the assistance of a Mediator, the parties continued negotiating
the terms of the settlement agreement and developed their settlement
costs proposal. Unfortunately, in March 2012 the negotiations fell
apart when the State of New Mexico withdrew its support for the
settlement and walked away from the negotiation table.
After this breakdown of negotiations that lasted over a four-year
span, the Pueblo of Jemez took the initiative to bring the parties back
to the negotiation table by hosting several group and individual
meetings with the parties. As a result of the Pueblo's efforts,
negotiations resumed in 2016 with the same parties plus the City of Rio
Rancho, except that the Pueblo of Santa Ana, declined to participate in
the negotiations. The Pueblo of Santa Ana prefers to litigate its
claims in the Jemez River basin in federal court.
Since 2016, with the assistance and involvement of the Federal
Negotiation Team, the settling parties negotiated a tentative
settlement agreement \2\ including settlement cost proposals for
projects to be funded from the settlement. The settlement cost
projection for Jemez Pueblo is $290,000,000 and for Zia Pueblo is
$200,000,000 for a combined settlement cost of $490,000,000 for the
Pueblos. The non-Pueblo portion of the settlement cost is projected at
$19,559,000, which will be borne by the State of New Mexico. Below is
an overview of the settlement agreement and components for which we are
seeking congressional approval.
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\2\ The settlement is tentative because the United States cannot
approve the settlement until it is authorized by Congress.
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Overview of Settlement Agreement
The Settlement Agreement recognizes and describes four categories
of Pueblo water rights with a time immemorial priority: (1) irrigation
water rights based on the Pueblos' Historically Irrigated Acres (HIA);
(2) current Domestic, Commercial, Municipal, and Industrial (DCMI)
uses; (3) water for Livestock Uses; and (4) Economic Development Water.
The focal point of the Settlement Agreement is the construction of
augmentation projects on Jemez and Zia lands. Each Pueblo will benefit
from construction of a well field that will augment surface supply with
groundwater. The well fields will provide groundwater for irrigation
and other uses by the two Pueblos and members of the San Ysidro
Community Ditch Association during periods of insufficient surface flow
in the Jemez River. By making groundwater available, the settlement
will prevent conflicts between the Pueblos and San Ysidro Community
Ditch Association over surface water use. Federal funding for the
Pueblos and state funding for the San Ysidro Community Ditch is
critical to implementing this augmentation agreement. Further, by
providing a critical buffer against climate change's effects on surface
supplies, the augmentation and other proposed settlement projects will
help preserve ancient cultural and agricultural practices and
strengthen the relationship between Pueblo and non-Pueblo communities
in the Jemez River Basin.
Settlement Components
The Pueblo of Jemez' settlement components are the following:
(1) Jemez Village Water Supply and Wastewater Feasibility
Investigation
(2) Water and Wastewater facilities
(3) Firmed Up Acreage (FUA) Irrigation Project
(4) Pueblo Water Department
(5) Multi-Use Water Development
(6) Stockwater Facilities
(7) Canon Area Land Acquisition
(8) River Improvement Projects
(9) Pipeline to San Ysidro Parcel
1. Jemez Village Water Supply and Wastewater Feasibility Investigation
Over the past two decades, the Pueblo has taken active steps to
improve the dependability and quality of its water supply.
Nevertheless, several water supply problems still persist on the Pueblo
including lack of water pressure, water quality concerns, insufficient
storage capacity, and outdated infrastructure. The Pueblo must also
identify and evaluate source(s) of supply for future water demands as
the Pueblo's population and economy continue to grow. It is
particularly important now to address water supply and treatment issues
that affect the health of Pueblo residents in light of the ongoing
COVID-19 outbreak and severe damage it has caused to Native American
communities in the Southwest.
Due to the lack of adequate domestic water systems and sewer
infrastructure in areas suitable for housing development, coupled with
inadequate domestic water supply systems within the Village, tribal
members are forced to seek housing off the reservation. The existing
system was built in the 1960's. Not only is there a lack of
infrastructure for new development, but within the Village, based on a
survey done several years ago, there are approximately 550 families
living in substandard housing, 370 families living in overcrowded homes
and 420 homes needing rehabilitation of some form. It was these housing
conditions on the pueblo that created a real challenge in protecting
the members from and preventing the spread of Covid 19 during the
pandemic.
The Settlement funding will help resolve the Pueblo's serious
problems by providing adequate domestic water drinking systems and
sewer systems.
2. Water and Wastewater Facilities
The Pueblo currently has two separate water systems that produce
approximately 186 acrefeet per year for the Pueblo's various domestic,
municipal, and commercial uses. In the near future, it is expected that
the Pueblo will grow, both in population and level of economic
development. Future demands were divided into three distinct areas: (1)
Jemez Village, extending from the mouth of Vallecito Creek down to the
southern Reservation boundary; (2) Red Rocks, located near the northern
Reservation boundary and described under a separate economic
development plan; and (3) Vallecito Housing, a proposed housing
development located east of the Jemez Village along Vallecito Creek.
Separate water supply systems were planned for each of these three
areas. Costs for the water supply systems were developed as part of a
2012 Bureau of Reclamation study and were expressed in 2012 dollars.
The Pueblo's wastewater treatment needs are currently served by
four non-discharging evaporation lagoons located along the Jemez River
near the Village. The Pueblo has had a desire to move away from lagoons
and towards more conventional forms of treatment and discharge.
Wastewater system improvements include costs for the replacement and
expansion of the wastewater collection or sanitary sewer system on the
Pueblo. Three separate sanitary sewer systems were designed for the
three water demand areas: (1) Jemez Village, (2) Red Rocks area, and
(3) Vallecito Housing area. Sanitary sewer system cost estimates
include costs for lift stations, manholes, and collection mains
conveying wastewater from the segmented demand areas on the Pueblo to
the wastewater treatment facility. Costs for the wastewater treatment
and collection systems were developed as part of a 2011 settlement
proposal and were expressed in 2010 dollars.
3. Firmed Up Acreage (FUA) Irrigation Project
The FUA Project is an irrigation system design developed for the
Pueblo and provided for in the 2008 Settlement Principles that seeks to
make improvements to existing irrigation infrastructure on the Pueblo
and to expand the capabilities and improve the reliability of the
system. A component of the FUA Project is the addition of water
resource augmentation to provide a firm supply to a fixed amount of
acreage through the construction of new wells and the improvement of
water delivery infrastructure to provide additional water supply
through improved irrigation efficiency. The FUA project consists of the
following: (1) conveyance system improvements, (2) on-farm
improvements, (3) augmentation wells, and (4) remote flow monitoring
and control systems to provide improved system management.
The overall goal of conveyance system improvements is to increase
the efficiency with which the Pueblo's canals and laterals deliver
water to the farm fields. The 60 plus year old concrete ditches and
their two diversion dams on the Jemez River have exceeded their
functional capacity making it difficult to effectively deliver water to
Pueblo fields. Projects identified for the conveyance system include
improvements intended to remove or reduce debris in the system, to
protect existing infrastructure from degradation, and to reduce water
loss due to seepage, as well as increases in system capacity to allow
for carriage of Zia and San Ysidro water demands under low flow periods
through the West Main Canal. The federal funding from the Settlement
will provide the necessary funds to completely re-engineer the
diversion dams and revamp the entire irrigation distribution system.
Crucially, the majority of the work proposed in the improvement of
the irrigation distribution system is work that can be done with the
Pueblo's work force. Approximately 30 percent of the Pueblo's work
force is skilled in construction, transportation, extraction and
material moving occupations and maintenance occupations. These
opportunities will help decrease the Pueblo's 40 percent unemployment
rate and bring in needed revenues into the family households to improve
the quality of life for our Pueblo members.
4. Pueblo Water Resources Department
Establishment of a Pueblo Water Resources Department is a crucial
piece to a successful water rights settlement. A Pueblo Water Resources
Department will administer water rights and oversee the management and
protection of Pueblo water resources and water rights. Funds are sought
under the water rights settlement to maintain a Pueblo Water Resources
Department through a trust fund and to complete specific capital
projects and studies that will assist in properly administering and
managing water rights including development of a Tribal Water Code.
5. Multi-Use Water Development
The Settlement will provide the Pueblo with an additional quantity
of water based on the historically irrigated acreage (HIA) water right
claim separate from the FUA project water rights. These rights are
based on irrigation, but will likely not be used for agriculture and so
are known as ``Multi-Use Water'' in the settlement. In addition, the
Settlement will provide an additional amount of water known as
``Remaining Water'' to the Pueblo. A quantification of these two
additional water rights is provided in the settlement. Together, these
two additional rights represent the domestic, commercial, municipal and
industrial (DCMI) water rights of the Pueblo. A portion of these water
rights will be used to meet the future domestic water supply demands of
the Pueblo.
6. Stockwater Facilities
The Pueblo intends to establish new, and rehabilitate existing,
stock watering facilities on the Reservation. The proposed settlement
includes three categories (ponds, springs and wells) of water rights
for livestock and wildlife. Costs for development are included in the
Settlement for all three categories of livestock water rights. An
inventory of stockwater facilities was performed by the Pueblo and the
results indicate that there are 22 springs, 48 ponds, and 18 wells on
the Reservation that service livestock. Costs for a single spring,
pond, and well are shown in the settlement agreement.
7. Canon Area Land Acquisition
The Pueblo has had periodic conflicts with upstream water users
near Canon who share use of the Jemez Pueblo West Side and East Side
canals (historic Pueblo ditches). The Pueblo desires to purchase the
lands and associated water rights for these lands to alleviate any
future conflicts over access, ingress and egress issues. Funds are
proposed as part of the water rights settlement to acquire lands and
water rights adjacent to the Pueblo ditches and around the Jemez River.
For the purpose of estimating costs, it was assumed that the Pueblo
would acquire all lands that are currently designated as agriculture
lands. Land acquisition costs were based on a February 2011 appraisal
study for the San Ysidro Ditch easement completed by Deborah Lewis at
the BIA Regional Office and indexed to 2021 values using the Bureau of
Reclamation land value index for New Mexico. Information provided in
the appraisal report indicated a range of land values. Developed
(leveled, cleared, planted) farmland is estimated to have a value of
$24,760 per acre based on information included in the appraisal study.
Water rights acquisition costs were based on a November 2007
article by F. Lee Brown for the New Mexico Water Resources Research
Institute. In this article, Brown provides a price range of $20,000 to
$35,000 per acre-foot for the purchase of water rights in the Middle
Rio Grande Basin (upper basin use area). A separate 2006 article by
Thomas C. Brown assesses water markets in the western United States and
establishes an annual rate of increase of about 1.28 percent based on
the median price of water (for all uses) between 1990 and 2003.
Applying this rate to the 2007 water rights prices per acre-foot
results in a value of $35,837 per acre-foot in 2021.
To ensure that the Pueblo will be able to avoid conflicts that may
develop with any other landholders in the vicinity of the Pueblo's
projects, the Pueblo will require funding for the purchase of an
additional 300 acres of land plus appurtenant water rights at a
consumptive irrigation requirement (CIR) of 2.0 afy/ac. This
acquisition cost totals to approximately $28,930,200.
8. River Improvement Projects
The Jemez River is an important natural and cultural resource for
the Pueblo, and the Pueblo is committed to maintaining the ecological
health and function of the River into the future. Funds are sought by
the Pueblo to complete stream restoration projects on the Reservation.
Activities would include stabilization of the Jemez River channel;
removal of tamarisk, Russian olive, and other invasive tree/shrub
species; re-vegetation of the riparian corridor with native species;
and performing geomorphology and ecological resource studies associated
with the river. It is estimated that there are 8.5 river miles to be
addressed with the funds, stretching from the West Main/East Side
diversion dam in Canon to the Highway 4 bridge just north of San
Ysidro. The total cost of stream restoration projects is estimated at
$10,710,000.
9. Pipeline to San Ysidro Parcel
The Jemez Pueblo plans to commercially develop approximately 95
acres of land south of San Ysidro that are owned by the Pueblo in fee
and formerly known as the lands of Frederick Fiber. The land is made up
of four parcels bounded by Highway 550 on the west and on the east by
Zia Pueblo Reservation land. In order to supply the area with water (95
afy), a pipeline was designed to deliver water from multi-use wells
planned for construction east of the Pueblo Village. The pipeline is
gravity flow and travels a distance of approximately 32,620 feet (6.2
miles) including connection to the multi-use wellfield and generally
following Highway 4 and 550.
The total settlement cost includes the total capital cost of the
project as well as funding for 50 years of operational costs, which is
estimated at $4,498,000 using the 10-year nominal discount rate of 0.8
percent from OMB Circular A-94-C (2021) as recommended by the
Department of Agriculture's Natural Resources Conservation Service.
Settlement Benefits
The Settlement brings long overdue investments in infrastructure to
our Pueblo. The Settlement Agreement will provide federal funds to the
Pueblo for costs associated with irrigation infrastructure
improvements, water and wastewater infrastructure improvements,
watershed protection, water-related Pueblo community welfare and
economic development, and costs relating to implementation of the
Agreement.
The economic development opportunities will be enhanced by the
development of domestic water and sewer systems in the Pueblo's
commercial area. The Pueblo's Visitor Center and convenience store are
located north of the Pueblo in the beautiful Red Rock area, which is
prime for development but seriously limited due to lack of funding to
bring a reliable water source to this development area. The settlement
funding will help us provide the water source. Not only will the
settlement projects bring income to the Pueblo members but it will also
bring in gross receipts tax revenues into the tribal government from
the construction projects, and it will have a state-wide economic
benefit for other businesses, construction companies and professionals
that can provide technical services for the Pueblo's projects.
More importantly, the settlement establishes the rights of the
Pueblo to use water for its own people and purposes, and provides for
quantification of Pueblo water rights, reliability of supply, and
economic development for the Pueblo both now and into the future. It
protects surface and ground water in the Jemez River Basin for future
generations while allowing all parties to fully exercise their water
rights and while addressing impacts on aquifer and surface flows of
future water development both in the basin and affecting the basin.
Conclusion
The Pueblo of Jemez has engaged in good faith negotiations for
nearly forty years to reach this settlement of its water rights in the
Jemez River Basin. We have invested many, many hours of time and
resources in these efforts. We are not a wealthy Tribal government nor
wealthy people; we do not have a casino or vast energy resources. We
know that water is the key to our long term health and stability. We
have worked in good faith to have our water rights confirmed, and we
need your help to ensure that we will be able to use our water to
secure the future for our tribal members, to accommodate future growth
of our population, and to realize the full economic potential of our
Reservation. We ask that this Committee do everything in its power to
move swiftly towards passage of S. 4896, the Pueblos of Jemez and Zia
Water Rights Settlement Act of 2022, so that we may achieve these
goals.
Thank you for the opportunity to testify before you today. I will
be pleased to answer any questions you may have.
Senator Murkowski. Thank you, Governor.
We now turn to Governor Galvan. Welcome.
STATEMENT OF HON. GABRIEL GALVAN, GOVERNOR, PUEBLO OF ZIA
Mr. Galvan. Good afternoon, Chairman Schatz, Ranking Member
Murkowski, and members of the Committee. I am Gabriel Galvan,
Governor of Zia Pueblo. On behalf of the Pueblo, I want to
extend my sincere thanks to you and the Committee for
scheduling this hearing.
The pending settlement of the Pueblo's water rights in the
Jemez River basin has been four decades in the making, and its
ratification by Congress is of enormous importance to my
community and its future. It will usher in what I sincerely
believe will be a new chapter for our Pueblo, allowing us to
protect our community and environment, plan and grow in a
sustainable manner, and to effectively deal with the impacts of
climate change on our limited water resources.
Zia's history is a saga of tragedy and resilience. The
Pueblo is located approximately 30 miles northwest of
Albuquerque. Our village has been in its present location since
the 1300s, adjacent to the Jemez River, the only significant
stream on our Pueblo. We survived the Spanish occupation, but
just barely. And the era of United States sovereignty did
little to improve our lot, until recently.
By the end of the 19th century our population had dwindled
from several thousand to less than 100, prompting an
anthropologist studying us at the time, to predict the
extinction of our Tribe within a few decades. But we not only
persevered in the face of great odds, we came back.
Today Zia has a population of over 800, a reservation
comprised of approximately 160,000 acres, and a strong, unique,
and vibrant culture. We are the proud creators of New Mexico's
state symbol, known as the Zia Sun Symbol.
Our Pueblo has a tradition of strongly encouraging self-
sufficiency. Most of us hunt, gather, cultivate crops, and
raise cattle, just as our ancestors have for centuries. We also
utilize our lands and resources to generate much-needed income
for our Tribe. We are not a gaming tribe, and our primary
source of tribal income are royalty payments from a gypsum mine
and a right-of-way fee.
Currently, the only private employer on our reservation is
a processing plant that produces organic soil supplements and
which employs 17 tribal members. But their facility cannot
expand as its owner plans, because the current water supply is
non-potable. We need a modern water supply system to attract
more private businesses.
Though our land base is substantial, our agricultural lands
are limited to about 1,100 acres. These lands are located in
the lower region of the Jemez River basin, downstream from non-
Indian communities and Jemez Pueblo. Consequently, Zia has
suffered from recurring surface water shortages and has
suffered shortages more frequently than upstream users. This
has discouraged many of our farmers from planting.
In contract to our limited and variable surface water
supply, Zia has substantial groundwater, particularly in the
southeastern portion of our reservation. Development of our
groundwater resources is critical to our goal of growing and
diversifying our economy and providing for a reliable
irrigation water system.
The settlement would comprehensively settle all of Zia's
water rights claims in the Jemez River basin, both surface and
groundwater. It would also provide the Pueblo with $200 million
for various water related projects, including wells, irrigation
system improvements, improvements to our domestic water system,
wastewater system improvements, Jemez River restoration work,
establishing a pueblo water rights department, and making stock
water improvements.
Passage of Senate Bill 4896 is critical to the Pueblo's
efforts to achieve a secure future for the Pueblo of Zia, to
accommodate the future growth of our population, and to realize
the full economic potential of our reservation. The Pueblo is
not aware of any opposition to the settlement, and it is
strongly supported by non-Indian water users in the basin and
the city of Rio Rancho and Sandoval County and the State of New
Mexico, as well as Zia and Jemez Pueblos.
Thank you for the opportunity to testify before you today.
I will be pleased to answer any questions you may have and
respectfully urge members of the Committee to support Senate
passage of this critical legislation.
[The prepared statement of Mr. Galvan follows:]
Prepared Statement of Hon. Gabriel Galvan, Governor, Pueblo of Zia
Good afternoon Chairman Schatz, Ranking Member Murkowski, and
members of the Committee. I am Gabriel Galvan, Governor of Zia Pueblo.
On behalf of the Pueblo, I want to extend my sincere thanks to you and
the Committee for scheduling this hearing. The pending settlement of
the Pueblo's water rights in the Jemez River basin has been four
decades in the making, and its ratification by Congress is of enormous
importance to my community and its future. It will usher in what I
sincerely believe will be a new chapter for our Pueblo, allowing us to
protect our community and environment, plan and grow in a sustainable
manner, and to effectively deal with the impacts of climate change.
Background on Zia Pueblo
Zia's history is a saga of tragedy and resilience. The Pueblo is
located approximately 30 miles northwest of Albuquerque. Our village
has been in its present location since the 1300s, adjacent to the Jemez
River, the only significant stream on our Pueblo. \1\ We survived the
Spanish occupation, but just barely. And the succession of United
States sovereignty did little to improve our lot, until recently. By
the end of the 19th century our population had dwindled from several
thousand to less than 100, prompting Matilda Cox Stevenson, an
anthropologist studying us at the time, to predict the extinction of
our tribe within a few decades. We suffered terribly from disease,
poverty and neglect. \2\ But we not only persevered in the face of
great odds, we came back. Today Zia has a population of over 800, a
reservation comprised of approximately 160,000 acres, and a strong,
unique, and vibrant culture. We are the proud creators of New Mexico's
state symbol--known as the Zia Sun Symbol.
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\1\ The Rio Salado flows into the Jemez River within the Pueblo,
but as its name suggests, when it flows, water is highly saline.
\2\ Fortunately, we did not lose any of our grant lands, basically
because as one historian commented ``[t]he lands of the Sia were so
poor however that when the Pueblo Lands Board undertook a study of land
problems in 1927 it `found no non-Indian encroachment' upon Sia
lands.'' (``The Pueblo of Sia, New Mexico,'' Smithsonian Institution
Bureau of American Ethnology Bulletin, Leslie A. Smith (1962).
---------------------------------------------------------------------------
Our Pueblo has a tradition of strongly encouraging self-
sufficiency, including engaging in all manner of subsistence
activities. Most of us hunt, gather, cultivate crops, and raise cattle,
just as our ancestors have for centuries. These activities, given our
desert environment, require a substantial land area and conservation-
focused management of our resources. The Pueblo has taken steps to
ensure that all of our tribal members have an equal opportunity to
utilize these resources, and that no one exploits them. For example, we
have a grazing ordinance that divides our range lands into units based
on their carrying capacity. These range units are shared by several
families who are each permitted to graze up to 20 head of cattle. This
limitation means that while no one can make a living off of ranching
alone, all have an opportunity to raise livestock for subsistence and
additional income. Ranching also reinforces the close connection that
our members have to the land, and encourages our families to work
together closely and cooperatively in managing our rangelands and
livestock.
Apart from subsistence purposes, we also utilize our lands and
resources to generate much needed income for our tribe. We are not a
gaming tribe and our primary source of tribal income is royalty
payments from a gypsum mine. We also generate modest amounts from cell
tower leases and right of ways for pipelines and electric transmission
lines. We have a business lease for a processing plant that produces
organic soil supplements, and which employs 17 tribal members. And our
reservation, which is only 45 minutes from downtown Albuquerque, has a
ruggedly beautiful western landscape, and has become increasingly
desirable as a filming location, generating sporadic income and short-
term employment opportunities for tribal members. While these
commercial uses provide our tribal government with limited, but much
needed, financial resources, we strive to take a balanced approach to
development, and protect our lands for grazing, cultural activities,
hunting, recreation, and similar purposes.
Background on the Abousleman Litigation
The adjudication of the Jemez River basin, in the case known as
United States v. Abousleman, dates back to June 27, 1983. The
proceedings initially focused on the determination of historical water
use by the Pueblos of Jemez, Zia and Santa Ana and the water use and
rights of the non-Indian parties. The water rights of the non-Indian
parties have been fully adjudicated subject to a determination of the
rights of the three Pueblos. The parties were then preparing to
litigate issues related to the nature and extent of the Pueblos' water
rights, and how they are to be quantified, when they decided to seek a
stay of the litigation and began a mediation process. That process
ultimately failed to produce a settlement and the litigation resumed in
2012.
Following a ruling by the District Court that the Pueblos'
aboriginal rights to water were terminated by virtue of Spanish
sovereignty over present-day New Mexico, the Pueblos and the federal
government appealed to the Tenth Circuit Court of Appeals, which
reversed the District Court. While the appeal was pending, the parties,
except for Santa Ana Pueblo, resumed settlement discussions, and these
discussions continued until this past summer when all of the non-
federal parties, except Santa Ana Pueblo, signed the Settlement
Agreement that S. 4896 would ratify. Santa Ana has chosen to continue
to litigate its claims, a route that Zia may reluctantly have to return
to if the settlement is not approved by Congress.
The settlement is strongly supported by the non-Indian water users
in the basin (including acequia communities and the City of Rio
Rancho), Sandoval County (which the basin is within), and the State of
New Mexico, as well as Zia and Jemez Pueblos.
The Pueblo's Critical need for a Reliable Water Supply and the Water-
Related Projects that the Settlement Will Provide Funding For
Though Zia's land base is substantial, we have only a relatively
small amount of agricultural lands--approximately 1,100 acres. And
these lands are located in the lower region of the Jemez River basin,
downstream from non-Indian communities and Jemez Pueblo. Consequently,
Zia has suffered from recurring surface water shortages, and has
suffered shortages more frequently than upstream users. While a water
rotation agreement that was worked out with upstream non-Indian
communities and Jemez Pueblo in 1996 has helped to mitigate water
shortages, during periods of drought Zia farmers can experience weeks
and longer of little or no water. Not surprisingly, recurring water
shortages have caused a significant decline in the total area farmed at
Zia. Because of our limited and sporadic surface water supply on the
Jemez River, our relatively small area of easily irrigable lands, and
our desert climate, agriculture at Zia has never been conducted on a
commercial scale. And except for a tribal orchard that is currently
being developed, we have no plans for commercial agriculture.
In contrast to our limited and variable surface water supply, Zia
has substantial groundwater resources, particularly in the southeastern
portion of our reservation. Thus, two of the key components of the
settlement are the development of irrigation wells to augment the
surface water supplies, and improvements to our irrigation
infrastructure so that water diversion and delivery is more efficient.
These projects are essential to our goal of restoring our tradition of
subsistence agriculture. Development of our groundwater resources is
also key to our goal of growing and diversifying our economy in a
prudent and sustainable manner.
Key Elements of the Settlement
The settlement would comprehensively settle all of Zia's federally
reserved water rights claims in the Jemez River basin, both surface and
ground water. It would recognize the following water rights for our
Pueblo:
1. a right to divert 3,819 acre feet per year and to
consumptively use 1,910 acre feet per year, which right may be
satisfied from surface or ground water;
2. a right to divert and use 112.5 acre feet per year of
groundwater for domestic, commercial, municipal and industrial
purposes;
3. a right to divert and use 477 acre feet per year for stock
water purposes; and
4. a right to divert and consumptively use 1,200 acre feet per
year of water for economic development purposes.
All of the Pueblo's water rights will have a time immemorial
priority and, subject to the approval of the Secretary of the Interior,
category 1 and 4 water rights may be leased by the Pueblo for a term of
up to 99 years.
Finally, Zia will have the right to divert available surface water
flows to fill and maintain water levels in Zia Lake for irrigation and
recreational purposes.
In addition to the above-water rights, the settlement will provide
the Pueblo with $200 million for various water-related projects
necessary for the efficient and effective use of this resource,
including:
1. An irrigation water supply augmentation project involving
the construction and operation of wells in the immediate
vicinity of Zia Lake for use during periods of low surface
flows and the rehabilitation of Zia Lake.
2. Irrigation system improvements, including renovation of Zia
diversion dam, installation of a drip system, and a pipe system
to replace open ditches.
3. Improvements to Zia's domestic water system, including new
production wells, water treatment (arsenic), and extension of
water lines to new residential and commercial development
projects.
4. Wastewater System Improvements, such as replacing aging
sewer lagoons with a modern wastewater treatment facility and
extending wastewater collection lines to new residential and
commercial project areas.
5. Necessary Jemez River Restoration projects to stabilize the
river channel (which is currently experiencing significant
erosion because of the Army Corps of Engineers abandonment of
the Jemez Canyon reservoir project) and remove invasive
species.
6. Establishing and operating a Pueblo water rights
department.
7. Making Stockwater Improvements, such as constructing new/
additional stock wells and ponds for better rangeland
utilization.
Conclusion
Passage of S. 4896 to ratify the settlement of our Jemez Basin
water rights is critical to the Pueblo's efforts to achieve a secure
future for the Zia people, to accommodate the future growth of our
population, and to realize the full economic potential of our
Reservation. Zia has come a long way from the threat of extinction 125
years ago, but still faces significant challenges in creating a
homeland for future generations and dealing with the climatic
uncertainties facing the basin. Providing for a secure and sustainable
water supply will help us to become economically self-sufficient, and
will allow us to restore our proud tradition of subsistence agriculture
and preserve our lands for generations to come.
Thank you for the opportunity to testify before you today. I will
be pleased to answer any questions you may have, and respectfully urge
members of the Committee to support Senate passage of this critical
legislation. *
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* The attachment to this prepared statement has been reviewed and
retained in the Committee files.
Senator Murkowski. Thank you, Governor.
Next, Governor Vicente, welcome to the Committee.
STATEMENT OF HON. RANDALL VICENTE, GOVERNOR, PUEBLO OF ACOMA
Mr. Vicente. [Greeting in Native tongue.] Madam Chair, Vice
Chair Murkowski, Chairman Schatz, and members of the Committee,
thank you for this time with us today.
My name is Randall Vicente, Governor for the Pueblo of
Acoma. I am here with other tribal leaders from New Mexico.
Together we stand united with the Pueblo Laguna, the Acequias,
the Community Ditches of the Rio San Jose Basin and the State
of New Mexico in full support of S. 4898.
With its passage, Congress will give my pueblo an adequate
water supply for the first time in 100 years. The legislation
pending before you is extremely important to my people. We are
in dire need of adequate water. The streams, aquifers, and
streams that once fed the Rio San Jose, the life blood of our
communities, and supported our agriculture lifestyle, has been
severely impacted and in some cases, devastated.
We strongly believe that the actions and the failures of
the Federal Government over the past century and a half have
contributed greatly to the extreme water shortage that
currently exists in Acoma.
My people settled in places along the Rio San Jose long
before the arrival of Europeans. We built our homes, raised our
families, grew our crops, lived off the river. Our spiritual
beliefs, songs and cultural ways reflected the landscape. Know
that we are an ancient people. We have rituals that are
hundreds, if not thousands of years old, and ceremonies that
date back to our beginning.
To that time, we believe we emerged from the center place,
a place we call Shipapu. We came into the world with a plan. We
came with all that was necessary for us to survive. We emerged
into this world accompanied by our deities, along with all of
the things when we emerged.
We began our journey in a place that will become a part of
who we are, a place prepared, a place that will reflect our
world view, a place we call Haak'u. Know that our spirituality
is intimately tied to the land. We define ourselves according
to geologic formations and visible sightings. Our faith is tied
to the springs, valleys, and mesas that reflect the expanse of
who we are as Acoma people. That includes the Rio San Jose.
At this point in our history, our river has been subjected
to a legacy of contamination and dewatering upstream from our
communities. Contamination is a result of decades of uranium
mining and milling in an industry created and supported by the
Federal Government. We are suffering from years of contaminants
seeping into our groundwater. Our springs are running dry, and
the aquifers need recharging.
Climate change and severe drought conditions have reduced
the snowmelt and contributed to declines in the water levels.
Aquifers are no longer recharged. Access to a fresh water
supply at this time is paramount. Only Congress can make this
happen.
Know that the Rio San Jose once flowed rich with wildlife.
Children in our villages played and swam in the deep, flowing
river. Men in our villages used it to water farm and irrigate
their fields. In fact, whole farming communities grew up along
the Rio San Jose. Corn fields, alfalfa fields, and orchards
were a common sight on both banks. Religious leaders attached
ceremonial significance to our river as it wove its way across
our traditional homelands.
Today the water flow is dramatically reduced. The watershed
has been severely impacted by those upstream. Acre feet that
are now entitled to what was unprotected by the Federal
Government for over a century, now we look at a river and
remember what was, not the shallow, barely flowing stream of
today, depleted of water. Only Congress can right those wrongs.
Acoma has been engaged in the battle over the water and
water rights for more than 40 years. We finally reached a
settlement with all the local parties, including the State of
New Mexico, other tribes, neighboring towns, and the Acequias.
The legislation is the result of delicate negotiations. It
will establish Acoma's legal right to water along with a
reliable water supply and protect water users in the region.
Acoma faces a future where water supplies are far from certain.
However, this legislation will allow water planning over the
long term and ensure a sustainable water future for my people.
We urge your support for S. 4898. Thank you, Chairman,
Madam Vice Chair. [Phrase in Native tongue.]
[The prepared statement of Mr. Vicente follows:]
Prepared Statement of Hon. Randall Vicente, Governor, Pueblo of Acoma
The Pueblo of Acoma (``Acoma'' or ``Pueblo'') strongly supports S.
4898 because, if enacted, Acoma and its neighbors will have the
resources to determine the region's water future and create an adequate
wet water supply for the Pueblo for the first time in a hundred years.
This legislation is the culmination of a decades long process to
address critical water shortages for all water users in the basin, an
area that's one of the most water-short places in the State of New
Mexico. The Pueblo believes it will not only be able to survive, but
also thrive, along with its neighbors, with the passage of this
legislation. This settlement addresses the claims made by the United
States on behalf of the Pueblos of Acoma and Laguna in State ex rel.
State Engineer v. Kerr-McGee, et al., a basin-wide adjudication of
surface and ground water rights in the Rio San Jose Stream System. \1\
In the course of negotiations with other water users, the Pueblo of
Acoma also negotiated its water rights in the adjoining Rio Salado
Basin to the south, and the Pueblo of Laguna negotiated its water
rights in the Rio Puerco Basin to the east. It provides a level of
certainty for all users in a time of growing water scarcity.
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\1\ The Rio San Jose adjudication involves all surface and
groundwater users in the system, Parties are presently negotiating
Navajo Nation claims at this time.
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The Pueblo of Acoma *
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* The images attached to this prepared statement have been reviewed
and retained in the Committee files.
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Sky City, Acoma is the ancestral village and ceremonial heart of
the Pueblo of Acoma.
The Rio San Jose Stream System has provided the primary source of
water for the Pueblo of Acoma for centuries and well before the arrival
of the first Europeans to this region. You may be aware that Acoma is
one of the oldest continuously inhabited communities in the United
States, if not North America. Acoma is located in the high deserts of
the southwestern United States. In our area, water has always been the
limiting resource. The average rainfall per year is 7 inches. We are in
dire need of adequate water. The streams, aquifers, and springs that
once fed the Rio San Jose, the life blood of our communities and
support for our agrarian lifestyle, has been decimated over the last
one hundred and sixty years due to the actions and the failures of the
federal government. Today Acoma faces extreme water shortages.
The Acoma People settled at places along the Rio San Jose, long
before the arrival of Europeans and some other tribal people. Our
spiritual beliefs, songs and cultural ways reflected the landscape.
Know that we are an ancient people. We have rituals that are hundreds,
if not a thousand years old, ceremonies that date back to our
beginning--to that time when we believe we emerged from that center
place, a place we call Shipapu. We came into this world with a plan. We
came with all that was necessary for us to survive. We emerged into
this world accompanied by our Deities along with all living things and
when we emerged, we began our journey in search of a place that would
become a part of who we are, a place prepared, a place that would
reflect our worldview, Haak'u, ``the place prepared.''. That place is
Acoma.
Our spirituality is intimately tied to the land. We define
ourselves according to geologic formations and visible sightings. \2\
Our faith is tied to the springs, valleys, mountains, and mesas that
reflect the expanse of who we are as Acoma People and that includes the
Rio San Jose. Know that the Rio San Jose once flowed rich with
wildlife. We built our homes, raised our families, grew our crops, and
lived off our river. Children in our villages played, fished, and swam
in the deep flowing, waters. Men in our villages used the water to farm
and irrigate their fields--in fact, whole farming communities grew up
along Rio San Jose. Corn fields, alfalfa fields, and orchards were a
common sight on both banks.
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\2\ This has been documented in Dittert and Bibo, Topographic
Features of the Pueblo of Acoma Land Claim 1952.
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BIA 1918 Planting Report for Acomita: ``Increased acreage of wheat.
Three miles of ditch built by Indians 80 acres additional in
cultivation'' Acres cultivated 1,625 acres: Alfalfa 122, Beans 14, Corn
720, Garden truck 40, Oats 4, Orchard 20, Wheat 705.''
BIA 1926 Crop Report for Acomita: 2,000 bs of apples & peaches of
very good quality.
Religious leaders attached ceremonial significance to the river as
it wove its way across our traditional homelands. While these
ceremonial uses have been threatened over the past one hundred and
fifty years due to low flows in the river, Acoma is not asserting any
monetary liability associated with any temporary loss, for these uses
which remain a vital part of Acoma culture today, and Acoma's right to
continue those uses cannot be extinguished through any kind of monetary
payment.
The Hydrology Of The Rio San Jose Stream System
The Rio San Jose Stream System in the absence of human activity is
a fragile, dynamic ecosystem in an arid high desert environment. Today
it is by far one of the most water-short river basins in New Mexico.
Water begins its journey to the river as winter snow on the Zuni and
San Mateo mountains, the latter of which includes Mount Taylor, a
registered cultural property of Acoma and Laguna Pueblos. Snowmelt and
summer monsoon rains feed both surface water and ground water aquifers.
A network of faults related to volcanism around Mt. Taylor adds
complexity to the regional hydrology of the basin. \2\ The faults send
groundwater to the surface forming springs such as Ojo del Gallo and
Horace Springs. The primary aquifer to provide surface flow is the San
Andres-Glorieta Aquifer. West of Ojo del Gallo, it is near the surface,
below the alluvium. At the fault, it plunges 2,000 feet underground. At
the fault, significant flows produced Ojo del Gallo and fed the
alluvial aquifer of the Rio San Jose, and at a constriction in the
bedrock, produced Horace Springs on the western boundary of the Pueblo
of Acoma Grant. Other aquifers higher on Mount Taylor are also fed by
snowmelt and monsoon rains. These aquifers discharged into the stream
system as well, creating the surface water flows in tributaries such as
Rinconada Creek that fed into the Rio San Jose as it flowed across
Acoma and Laguna Pueblos.
Acoma Water Use Prior to U.S. Sovereignty
Prior to United States' sovereignty over the region, the Rio San
Jose supplied enough water for the Pueblos of Acoma and Laguna to not
only survive, but to thrive. There is a wealth of archaeological
evidence that Acoma has been irrigating its lands for at least 1,000
years. During times of low flow, Acoma employed walk-in wells to reach
groundwater that was used to for domestic needs and to hand water
gardens, and also directed modest ephemeral surface flows to crops that
needed it. The first written record to describe Pueblo irrigation in
the area now known as New Mexico describes Acoma Pueblo irrigating from
the Rio San Jose in 1583. \3\ While there were small communities
established by Spain and Mexico that could interfere with Pueblo uses
on one of the smaller tributaries of the Rio San Jose, there were no
mainstem upstream users prior to United States acquisition of the
territory. \4\ In State ex rel. State Engineer v. Kerr-McGee, et al.,
the Court found as follows:
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\3\ Hammond, George P. and Agapito Rey, Expedition into New Mexico
Made by Antonio de Espejo, 1582 to 1583, Vol. 1 of the Quivera Society
Publications, Los Angeles: 1929 at p. 87, See, also Herbert Eugene
Bolton, ed. Spanish Exploration in the Southwest, 1542-1706, New York:
Scribner's Sons, 1916, pp. 182- 183. Cutter, Charles, Water Use in the
Rio San Jose Watershed: Acoma, Report prepared for U.S. Dept. of
Justice, Oct. 1, 2003, p.4.
\4\ The Cubero Land Grant was established in the Mexican period
(1833) to the north of the Pueblo of Acoma. Report to Congress--the
Treaty of Guadalupe-Hidalgo--Definition and List of Community Land
Grants in New Mexico, U.S. General Accounting Office (2001) p.9. The
community ditch or acequia for Cubero Land Grant is a party to the
settlement.
Here, the undisputed evidence is that the Lagunas and Acomas
had possession, occupancy, and beneficial use of land and water
prior to the arrival of Europeans in the mid-16th Century.
Indian title to the land was recognized and confirmed by the
Spanish Crown and, similarly, the validity of Indian title was
recognized by the Mexican Government. Neither Spain nor Mexico
sought to divest the Acomas or Lagunas of any right, title or
interest to the Pueblo lands. ). State ex rel. State Engineer
v. Kerr-McGee Corporation, et al., Special Master's Report and
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Recommendations, November 5, 1992 .p. 40.
On the basis of the record in this proceeding, the Acomas and
the Lagunas did indeed, acquire[d] aboriginal title. An
aboriginal title is superior to that of any third person[.]''
Id. pp. 43-44. \5\
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\5\ The District Court adopted the Special Master's recommendation
that the Pueblos have aboriginal water rights that were not
extinguished by Spain or Mexico. New Mexico ex rel. Martinez v. Kerr-
McGee Corp., Nos. CB-83-190-CV and CB-83-220-CV (consolidated) (N.M. 13
Jud. Dist..) Order and Judgment Adopting Special Master's Report and
Recommendations and Denying Motions for Reconsideration (May 18, 1993).
This holding was not appealed to the New Mexico Court of Appeals. See
State ex rel. Martinez v. Kerr-McGee Corp, 898 P.2d 1256, 120 NM 118,
127 (N.M. Ct. App. 1995) cert den'd 120 N.M. 68, 898 P.2d 120 (1995).
When this matter was before the New Mexico Court of Appeals, that
court confirmed these findings that Acoma still retained its time
immemorial water rights to all lands within the Pueblo of Acoma Grant
as approved by Congress pursuant to the 1858 Act. \6\ The United
States, the State of New Mexico, Acoma and the parties to the
settlement agree that Acoma's aboriginal water right was sufficient
water to irrigate 1,870 acres of land with delivery of 5,610 acre-feet
per year (``afy''), domestic rights of 693 afy and recognized the
Pueblo's right to uses for uses. \7\
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\6\ Id. In the Act of July 22, 1854, 10 Stat. 308, Congress
established the Office of the Surveyor General of New Mexico, Kansas,
and Nebraska. The Act directed the Surveyor General to report on lands
held under Mexican law, with particular reference to Pueblos' holdings.
Congress confirmed Acoma's aboriginal title to lands and waters in the
Confirmation Act of 1858, Act of December 22, 1858, ch. 5, 11 Stat.
374.
\7\ 1,870 acres, consisting of 1,275 acres with points of diversion
from the Rio San Jose mainstem; 265 acres with points of diversion from
Rinconada Canyon,163 acres with points of diversion from San Jose
Canyon and 167 acres with points of diversion from the Acoma Grant
south of main stem. These figures aret a compromise. Data produced by
United States. and Pueblo experts show that Acoma likely irrigated
2,500--2,700 acres in the Rio San Jose Valley. Keller-Bliesner Water
Use Survey 2003, Prepared for U.S. Dept. of Justice (2,542.35 acres
irrigated); Natural Resources Consulting Engineers, Inc., Summary of
Past and Present Water Uses of Acoma Pueblo--New Mexico State Engineer
v. Kerr McGee, 2005, p. 4 (2715.6 acres irrigated).
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Destruction of the Water Supply
The Creation of Fort Wingate, 1862
Today the primary sources of water in the Rio San Jose are very
few. Spring flow discharged from the San Andres-Glorieta aquifer. That
aquifer and the aquifers that form Mt. Taylor have been mined so that
most have gone dry. Only one spring, known as Horace Springs,
contributes to the Rio San Jose so that a dwindling trickly slowly
flows across the Pueblo. Now, some 80 years later, the flow from the
spring has dropped dramatically to as low as 1.8 cubic feet per second
(``cfs'') or 1,304 afy and rarely reaches 3 cfs, or 2,173.34 afy.
Historically the Rio San Jose's flows at Horace Springs were much, much
greater, at least 14 cfs, or 10,142,27 afy. For the Ojo del Gallo
parciantes on the acequia south of Grants, no water has flowed from Ojo
del Gallo spring for decades. Also, because of climate change and long-
term drought, snow melt from the Zuni and San Mateo Mountains is now
significantly reduced limiting flows into Bluewater Lake.
The drop in snow melt has also contributed to reduced water levels
in streams and aquifers.
Beginning in 1862, with the establishment of Fort Wingate by the
United States Army on Acoma aboriginal lands, the United States was
responsible for the diversion of Ojo del Gallo spring flow that
provided approximately one-third to one-half of the surface water
supply to the Pueblo of Acoma, with the knowledge that Acoma used this
water. After the Fort was moved west to its present location near
Gallup, New Mexico, the United States did not act to return the spring
flow to the Rio San Jose, or prevent others from using it, despite
knowledge that the Pueblo relied on the flows. It was known to be one
of the most productive springs in the region. Even without those flows,
Horace Springs was producing 10 cfs or 7,244.47 afy, about half the
pre-U.S. flow.
Allowance of Bluewater Dam and the Bluewater-Toltec Irrigation District
Without Enforcement of Pueblo Senior Water Rights
In the late 1890's homesteaders upstream from Acoma attempted to
dam Bluewater Creek, the major tributary of the Rio San Jose. By the
1920s, the backers of the dam created the Bluewater Dam (``Dam'') and
Bluewater-Toltec Irrigation District (BTID) that cut off significant
upstream flows, even though the flow would never be enough to supply
all of the land within the BTID. Originally meant to service 2,000
acres of land for irrigation it grew to much greater acreage with the
building of the significantly larger Bluewater Dam in 1927.
When the farmers in the BTID could not get water from the Dam to
irrigate up to 5,488 acres, they turned to groundwater after the
introduction of the submersible pump in the 1950s, receiving
authorization from the New Mexico State Engineer to drill supplemental
wells. Those wells tapped the San Andres-Glorieta aquifer. This
groundwater use siphoned off water that would have flowed as surface
water in the Rio San Jose across the Pueblo due to the hydrology of the
basin. Over time, the flow of the Rio San Jose at Horace Springs
decreased to between 5 and 6 cfs.
The United States, while aware that the Dam was interfering with
Pueblo water use, ultimately did nothing despite repeated Pueblo
objections. Attorneys for the Pueblo appointed by the United States
initially preferred to believe the backers of the Dam who disclaimed
any effect on Pueblo water or tried to placate the Pueblo with the
notion that federal legislation, what eventually became the Pueblo
Lands Act of 1924, would resolve the problem. In the 1930s, the Bureau
of Indian Affairs (BIA) suggested that the United States actually
purchase lands in BTID to free up water for the Pueblos. This was
rejected by the Washington D.C. leadership of the BIA. After the United
States finally requested a release of stored water from the Dam for the
Pueblos in the 1940s, it took no action to actually enforce the
Pueblos' right to water when the BTID declined the request, although
BTID was on notice that the United States would not look favorably on a
denial of water to the Pueblos. The United States. may have been upset
with BTID, but it did nothing.
The United States did nothing to stop the drilling of supplemental
wells that tapped the San Andres-Glorieta Aquifer which provides the
lion's share of surface water through the Pueblo. Acoma strongly
objected to this groundwater pumping as a means of supplementing
inadequate surface flows for BTID farmers, and that was duly noted by
William Brophy, Special Attorney for the Pueblos. On March 30, 1949,
Governor Julian Chino of Acoma wrote to the BIA stating that the Pueblo
was worried about the water situation in the Rio San Jose: ``It is
getting low; not enough to irrigate farms because on Bluewater area
wells are being drilled. What can be done to help us?''. In May of
1949, the Superintendent of the BIA United Pueblos Agency wrote to
Brophy about Acoma's concerns.
Some time ago I sent a memorandum to Mr. Boldt about the
concern of the Acoma Pueblo about the underground water in the
vicinity of Acoma. .I have discussed this problem of trying to
control the drilling of wells, etc. in the Bluewater area with
several people, but somehow I can't get anything definite as to
what I should do to try to control it. \8\
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\8\ General Superintendent to William A. Brophy, Special Atty for
the Pueblo Indians and Eritc T. Hagberg, November 29, 1949.
The United States' response was to express concern but do nothing
to defend the Pueblo's right to water. Handwringing and commiseration
does not water crops needed for survival.
Even when Congress enacted the Pueblo Lands Act in 1924 to enable
the replacement of Pueblo land and water due to the past failure of the
United States to protect Pueblo rights, no action was taken to replace
what Acoma had lost through these trespasses to its water rights. \9\
Yet reports of the Pueblo Lands Board pursuant to the 1924 Act alerted
the Attorney General of the United States to the trespasses occurring
on Pueblos' water rights, and the need for action to protect against
such trespasses. For example, one of the Board's reports on the Pueblo
of San Ildefonso stated:
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\9\ The Pueblo Lands Act of 1924 (Act of June 7, 1924, 43 Stat.
636, Ch. 331) created the Pueblo Lands Board which was tasked with
reporting on land and water use on Pueblo lands by non-Indians. The
Board believed that absent loss of land, the right to water was not
lost and need not be replaced, just enforced.. See, Report No. 2 for
Pueblo of San Ildefonso. In 1931, congressional hearings were held on
the operations of the Pueblo Lands Board. Survey of Conditions of the
Indians in the United States, Hearings Before Subcommittee on Indian
Affairs, United States Senate, Pueblo Lands Board, Part 20, United
States Printing Office, 1932. No compensation was awarded for trespass
to water rights absent loss of land. Acoma did not lose any land, so no
compensation was awarded for its loss of the use of water due to
upstream. See Act of May 31, 1933, 48 Stat. 108.
Fifth--That it is the duty of the United States as guardian of
these Pueblo Indians, to assert and define these principles and
to take such action, legal or otherwise, as will prevent the
use of the waters of these streams by other than Indians to any
greater extent than is consistent with such principles so
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announced. . .
[W]e believe that the matter of the Indians' water priorities
should be brought to an issue by the Government as soon as
possible. What might be done, it would seem is to determine
definitely how much water the Indians need to properly irrigate
the lands they now have under irrigation, or would cultivate if
they had the water for it, then see to it that the ditches
serving these lands are in proper condition; then serve notice
on all non-Indian users above any of these Indian lands that
they are entitled to no water, except such surplus as there may
be after the Indians' needs are sufficiently provided for. This
would probably necessitate Government ditch riders with power
to see to it that the Government's orders are enforced. If such
orders were resisted, the matter could then be tested out by
adequate court action and that might reasonably be expected to
result in definite arrangements whereby all the water (or so
much of it as might be required) should be allowed to flow to
Indian lands for defined periods. \10\
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\10\ Survey of Conditions of the Indians in the United States,
Hearings Before Subcommittee on Indian Affairs, United States Senate,
Pueblo Lands Board, Part 20, United States Printing Office, 1932,
10977-78.
Despite this clear directive in 1929, the United States did not
take action to restore Acoma's water rights until 1982 when the United
States belatedly filed an action against the BTID for trespass to the
water rights of Acoma and Laguna Pueblos. The history of the litigation
is discussed in United States v. Bluewater-Toltec Irrigation Dist., 530
F.Supp. 1434 (D.N.M. 1984) (``Bluewater-Toltec''). The United States
sought declaratory relief for both the priority and quantity of Acoma's
and Laguna Pueblos' water rights, as well as damages and a permanent
injunction on a trespass theory against the Irrigation District and its
members. \11\ After several procedural disputes, the federal court case
was dismissed so the Pueblos' water rights would be quantified in the
state court adjudication. \12\ However, the Court was careful to
dismiss without prejudice so trespass claims asserted against the BTID
and other non-Indian water users could be determined after the Tribal
water rights were quantified. \13\ This ruling preserved the damages
claims based on trespass to Pueblo water rights. Therefore, the
trespass claims that were made in the federal court action will only be
resolved through this legislation. If the settlement agreement is not
authorized through this legislation, these claims remain to be
resolved.
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\11\ The complaint explicitly stated that it did ``not seek a
general stream adjudication to determine the full extent of the
Pueblos' rights to the use of the Rio San Jose, its tributaries and the
underlying groundwater basin.'' United States v. Bluewater- Toltec Irr.
Dist., 580 F.Supp. 1434 at 1427-38 (D.N.M. 1984); aff'd 806 F.2d 986
(10th Cir. 1986).
\12\ ``The court holds that the state court actions are
sufficiently comprehensive to withstand the United States' motion to
dismiss based on a failure to name all claimants and Indian sovereign
immunity. There is a want of federal jurisdiction, however, over the
removed action. But even if removal jurisdiction could be sustained on
a federal question theory, the removal of these state court actions
would be defective because all defendants did not join in the removal
petitions. After a review of this water litigation, the court concludes
that the federal action should be deferred in favor of a general
adjudication of the Rio San Jose in state court.'' 580 F.Supp at 1437.
\13\ ``That general adjudication will have a profound effect on the
nature and extent of any claims made by the United States. A general
adjudication involving some 1600 claimants will take years to complete.
It serves no good purpose for this unfocused federal trespass action to
linger while the general adjudication proceeds. Once the general
adjudication is completed, or it there should be ``a significant change
in circumstances,'' the United States may resort to federal court.''
580 F.Supp at 1447.
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Today, forty years since the filing of the trespass action, and
more than 90 years after the construction of the Dam, the United States
has not acted to limit the use of surface or groundwater by the BTID or
other users so as to provide the Pueblos with an adequate water supply.
\14\
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\14\ Acoma's 1951 petition for compensation for land and water
before the Indian Claims Commission (Pueblo de Acoma v. United States
of America, Docket 266, 18 Ind. Cl. Comm. 154 (1967)) did not resolve
the question of United States liability with respect to Acoma's
depleted water supply due to the Bluewater dam. See, Order Amending
Findings of Fact and Opinion, 19 Ind. Cl. Comm., 152, May 2, 1968. The
settlement of that litigation did not affect Acoma claims to water to
irrigate its grant lands. See State ex rel. Martinez v. Kerr-McGee
Corp, 898 P.2d 1256, 120 NM 118, 127 (N.M. Ct. App. 1995) cert den'd
120 N.M. 68, 898 P.2d 120 (1995).
---------------------------------------------------------------------------
Ojo del Gallo, 1950s, after depleted due to upstream pumping of San
Andres Glorieta Aquifer beginning in 1940s. This spring went dry by
1960.
From 1952 Dittert and Bibo ``Topographic Features of the Acoma Land
Claim (submitted to Indian Claims Commission in Pueblo de Acoma v.
United States, Docket 266).
The Uranium Boom--1950 to 2019
The search for uranium has been the only United States government--
induced, government maintained, government- controlled mining boom in
this nation's experience. For the ore pouring from the mines of the
western deserts and mesas there is but one important purchaser--the
Atomic Energy Commission; but one prime destination--the weapons
arsenal of the United States; and but one price--that established by
the government. \15\
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\15\ Lang, Herbert, ``Uranium Mining and the AEC: The Birth Pands
of a New Industry,'' Business History Review, Vol. 36, No. 3 (Autumn
1962), p. 325.
---------------------------------------------------------------------------
When the United States lit up the New Mexico desert with the
detonation of the first atomic bomb, it set off an arms race now
referred to as the ``Cold War.'' At the start of the Cold War, the
United States' government created and fueled demand for enriched
uranium to supply the nuclear weapons program. The effect on the Stream
System was profound.
Groundwater depletions expanded beyond reason in the Atomic Age
after uranium was discovered in the Grants Mineral Belt upstream from
Acoma. Uranium mining and milling began within the Rio San Jose Basin,
at the instigation of, and with the complete backing of the United
States government, the only purchaser of the processed uranium. \16\
The uranium was located in the same rock formations where water was
stored--aquifers--and that water supplied perennial springs within the
Basin, many of which contributed to Rio San Jose flows. \17\ These
aquifers, and those located above them, were dewatered by the mining
companies to create mineshafts and to facilitate removal of the
uranium, thereby depleting spring flow contributions to tributary flows
to the Rio San Jose. The mining companies were not even required by the
United States or the State of New Mexico to put the water that was
removed from the aquifers into the Rio San Jose stream system. Instead,
the water was discharged into an adjoining river basin. In 1980 the New
Mexico State Engineer estimated that some 40,000 to 50,000 acre feet of
water yearly were being discharged into the adjoining river basin
during the due to dewatering activities. At that time it was also
estimated that by 1987, an aquifer with an estimated annual recharge of
5,000 afy could have been losing up to 100,000 afy. \18\ Water, along
with uranium was being mined at an exorbitant rate.
---------------------------------------------------------------------------
\16\ Alvarez, Robert, ``Uranium and the Acoma Pueblo,'' February
17, 2020, Appendix ``Purchases of Uranium by the Atomic Energy
Commission.
\17\ ``In San Juan, McKinley and Valencia [Cibola] counties, the
host rock for much of the uranium ore is the Westwater Canyon Member of
the Morrison Formation. The Westwater Canyon Member is also a principal
aquifer in the area. Gottlieb, Gail, ``New Mexico's Mine Dewatering
Act: The Search for Rehoboth'', 20 Nat. Resources J. 653, 1980 (October
10, 1979). Note that Cibola County was created out of Valencia County
in 1981.
\18\ Id., citing S.E. Reynolds, Statement of Mine Dewatering
presented to the Interim Legislative Committee on Energy and
Environment of the New Mexico Legislature (Nov.29, 1979) at 1.
---------------------------------------------------------------------------
The mined uranium ore had to be made into usable uranium--yellow
cake. This was done at mills located on lands overlying the alluvial
aquifer in the Stream System. Four uranium mills for creating
yellowcake were upstream from Acoma: Bluewater Disposal, now known as
the ARCO site northwest of Grants, Rio Algom (formerly Kerr-McGee and
Quivira) and Phillips-United Nuclear Corporation in the Ambrosia Lake
area and one operated by Homestake-Barrick a short distance north of
Grants. Milling facilities also consumed large amounts of groundwater.
\19\
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\19\ The Bluewater Milling site claims use of 4,000 afy of water, ,
Rio Algom claims use of 9,000 afy and the Homestake Mill site claims
use of 1,300 afy. Homestake acquired the water rights from irrigators
in the BTID and transferred the place of use to the mill site. See,
generally, Records of the N.M. Office of the State Engineer.
---------------------------------------------------------------------------
With the booming growth of this mining economy, the upstream
village of Grants, which had a population of 1,347 in 1940 \20\
exploded to over 10,000 people in the 1960s. \21\ It relied on the
increasingly stressed groundwater to supply the exponential growth of
this community without any protest by the United States on behalf of
the Pueblos. The population of Grants peaked at 11,439 in the 1980's.
\22\ Following the collapse of the uranium mining industry when the
United States removed its price supports, the population began to fall
and in 2018 was less than 9,000 people. \23\
---------------------------------------------------------------------------
\20\ R.H. Sears, ``Appraisal Report of the Acoma Pueblo Land, State
of New Mexico As of 1901-1936'', Prepared for the United States
Department of Justice (1970) at pp. 81-82
\21\T3ASee https://population.us/nm/grants/ (citing US
Census data).
\22\ Id.
\23\ Id.
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Another off-shoot of the uranium boom was the location of the
Plains-Escalante Generation Station (PEGS) electricity generation
facility in the headwater area of the Rio San Jose. Originally
conceived to power the uranium boom and associated population growth,
the electric company purchased water rights from the farmers in the
BTID and those on the Ojo del Gallo Ditch who had supplemental
groundwater wells to supply most of its water requirements. This
dewatered the irrigation district through acquisition and transfer of
multiple agricultural water rights. These rights that were historically
used only during the growing season, with significant return flows
downstream became a use that consumed 100 percent of the water
transferred. \24\ Plains Electric and its successor, Tri-State
Generation and Transmission Association, Inc. (``Tri-State''), claim to
have used up to 4,272.13 afy. \25\ Tri-State's water use decreased
after the decline of the uranium industry in the basin. From 2014 to
2018, Tri-State reported consumptively using no more than a total of
5,539.34 acre-feet of water, all mined from the declining San Andres-
Glorieta Aquifer. \26\
---------------------------------------------------------------------------
\24\ The steam generated by the plant was used by a paper mill. It
is not at all clear that in approving the transfer of these irrigation-
based water rights to an industrial use, the State Engineer actually
considered that agricultural rights are uses for only the growing
season and do not consume all water diverted while these industrial
uses are totally consumptive and are used throughout the year.
\25\ N.M. Office of the State Engineer, Final Inspection Report of
Beneficial Use of Underground Waters, File No. B-7 (1-19-2000); File
No. B87-B-S-2,4,5,6 (1-9-94), File No. 13-5-F, B-44, B-45-X (1-10-89);
File Nos. B-17, B-18,-19 and B-20 (3-4-86).
\26\ Smyth, Joe, Coal and Water Conflicts in the American West,
Energy and Policy Institute, July 15, 2020. https://
www.energyandpolicy.org/coal-water/.
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Again, the United States did not limit this large industrial use so
that prior Pueblo uses could be maintained. Indeed, the approach of the
United States after an initial challenge was to reserve these issues
for the adjudication of the Basin--the litigation that is settled for
the Pueblo with this legislation--rather than pursue an appeal. \27\
Tri-State has closed the coal-fired PEGS in 2019, and a potential sale
or lease to another energy company for hydrogen production has been
proposed. The new company will likely assert the right to mine large
amounts of water from the Rio San Jose alluvial aquifer and the San
Andres-Glorieta Aquifer. \28\
---------------------------------------------------------------------------
\27\ Monson, Peter C. U.S. Department of Justice, letter dated
April 29, 1986 to Arturo Ortega and Harold A. Ranquist, counsel for
Pueblo of Acoma.
\28\ See https://nmpoliticalreport.com/2021/04/20/the-retired-
escalante-power-plant-may-be-converted-into-a-hydrogen-plant/.
---------------------------------------------------------------------------
The uranium boom did not just increase depletion of the Rio San
Jose Stream System. Uranium mining and milling operations generated
liquid wastes, or effluent. Effluent included process waters from
unlined on-site ore operations, and uranium milling operations.
Effluent discharged prior to the establishment of state and federal
regulations underwent little or no treatment prior to discharge. Runoff
from contaminated soils and previous untreated discharges continue to
threaten regional bedrock drinking water aquifers and shallow alluvial
aquifers connected to San Mateo Creek and the Rio San Jose. Extensive
mine dewatering during mine operations also created a regionally
extensive cone of depression into which oxygenated groundwater
continues to flow. Oxygenated groundwater can dissolve and mobilize
unmined uranium and other hazardous constituents within the aquifers.
Decades of uranium milling activity in the region caused widespread
groundwater contamination in alluvial and other shallow aquifers. \29\
According to the U.S. Environmental Protection Agency (EPA) in its
Grants Mining District, New Mexico 2015--2020 Five-Year Plan to Assess
and Address Health and Environmental Impacts of Uranium Mining and
Milling, few of the legacy mines have undergone reclamation. \30\ The
mills either impounded their effluents, or tailings, in unlined
evaporation ponds, injected both treated and untreated effluent into
local groundwater aquifers, or released effluent into San Mateo Creek.
Tailing seepage has contaminated the Rio San Jose alluvial system and
the bedrock San Andres-Glorieta aquifer with molybdenum, selenium, and
uranium.
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\29\ The discovery of large subsurface uranium deposits within the
Jurassic Westwater Canyon Member of the Morrison Formation at Ambrosia
Lake resulted in the establishment of two-thirds of the active uranium
mines in New Mexico within the Ambrosia Lake Mining Sub-District by
1980. See U.S. Environmental Protection Agency, Administrative
Settlement Agreement and Order on Consent for the San Mateo Creek Basin
Legacy Mines Sites, Dec. 3, 2019. Ambrosia Lake is in the northwestern
portion of the Rio San Jose Basin and the adjoining San Juan Basin.
\30\ As noted on the website, approximately 50 percent of the
abandoned mines have not yet been located. The New Mexico Mines and
Minerals Department website contains a map which vividly depicts the
extent of uranium mining in the Rio San Jose Stream System upstream
from the Pueblo of Acoma (available at https://www.arcgis.com/apps/
dashboards/91f296cb3ea24f689329eb5075ec3bb7.
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Cleanup of contamination has used and continues to use extensive
water resources. For example, Homestake-Barrick Mining Company (HMC),
licensed by the Atomic Energy Commission, and now licensed by the U.S.
Nuclear Regulatory Commission (No. SUA-1471), operated two uranium
mills from approximately 1958-1990. During operations, approximately 22
million tons of ore were milled at the site, using a conventional
alkaline leach process. \31\ This milling activity caused widespread
groundwater use and contamination of the alluvial and nearby aquifers.
The mill site was declared a Superfund Site by the EPA and has been in
reclamation since 1990, following the demolition of the mill. At
present the contamination plumes from the Atlantic Richfield Company
mill tailing site and that at the Homestake site are converging. \32\
---------------------------------------------------------------------------
\31\ EPA Third Five-Year Review Report, Homestake Mining Company
Superfund Site, (EPA ID: NMD007860935) Cibola County, New Mexico.
\32\ U.S. DOE Legacy Management Report: Evaluating the Influence of
High-Production Pumping Wells on Impacted Groundwater at the Bluewater,
NM Disposal Site (August 2020).
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Cleanup of the Homestake site has used extensive water resources
and has not been wholly successful. \33\ ``The contaminant plume has
receded back almost three-quarters of a mile into the site boundaries
of HMC by injecting fresh water down gradient of the site. Nearly 4.5
billion gallons of contaminated water have been removed and 540 million
gallons of treated water have injected into the aquifer.'' \34\ Acoma
submitted multiple protests to HMC's applications to drill supplemental
wells in the Bluewater Underground Water Basin, on the grounds that
there is insufficient unappropriated water available to satisfy
Homestake's request, yet the applications were approved. \35\ The
United States did nothing.
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\33\ See generally, Pueblo of Acoma Protest to Applications by
Homestake Mining Company to Change Well Location No. B-28-S-323 and to
Drill Supplemental Wells in the Bluewater Underground Water Basin No.
B-28-S-386 through B-28-S-429.
\34\ 5/9/2019, Homestake Mining Co., Superfund Site Profile,
Superfund Site Information
\35\ Pueblo of Acoma Protest to Applications by Homestake Mining
Company to Change Well Location No. B-28-S-323 and to Drill
Supplemental Wells in the Bluewater Underground Water Basin No. B-28-S-
386 through B-28-S-429. (``Groundwater cannot be treated exactly like
surface water because once appropriations exceed the natural recharge
in an aquifer, it is being mined. It cannot be treated as a reoccurring
resource. Based on the drop in flow from Ojo Del Gallo at San Rafael,
which is historically related to depletion of the San Andres-Glorieta
aquifer, this aquifer is already being mined to meet present uses,
threatening senior water users. Supplementing Homestake's use will
result in a greater possibility that water will be insufficient to meet
the needs of the holders of senior water rights.'')
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In 2012, the New Mexico Office of the State Engineer approved HMC's
application to temporarily divert 4,500 afy and drill 839 supplemental
wells. \36\ This ``temporary'' permitted use is in addition to applying
the 1,200 afy water right claimed by Homestake for reclamation
activities. Despite Acoma's protests, the Office of the New Mexico
State Engineer has approved the installation of at least 600 wells as
of 2016 for the reclamation project, further draining the region's
water supply. \37\ The United States has not protested these actions.
According to EPA reports, 5,855,488,029 gallons of water, or 48,658.72
acre-feet of water were pumped from the alluvial aquifer from 1978-2014
at this one site. The amount pumped from the San Andres-Glorieta
aquifer in the same period is likely to be more as the remediation
effort pumped water from the San Andres-Glorieta Aquifer and then
injected it into the alluvial aquifer. This is likely to continue for
the future as the pumping regime is needed to prevent the contamination
plume from migrating south to the Rio San Jose. According to reports,
water levels in three wells in the San Andres-Glorieta aquifer under
Acoma, east of the San Rafael Fault where the aquifer is 2,000 feet
below the surface, have declined by 46 feet \38\ since 1998. \39\ The
alluvium underlying the primary tributary to the Rio San Jose from the
western side of Mount Taylor, San Mateo Creek, is so contaminated that
the New Mexico Environment Department warns users against using the
water. On July 16, 2019, the San Mateo Creek Basin was added to the
Superfund Site Emphasis List by the EPA, thereby being targeted for
``immediate, intense action.'' \40\
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\36\ See Feb. 6, 2012 letter from NM Office of the State Engineer.
A temporary diversion request of 4,500 was approved in Feb. 2008.
\37\ U.S. Environmental Protection Agency, Fourth Five-Year Review
Report for Homestake Mining Company Superfund Site, September 2016.
\38\ Kathy Helms, ``Official: Dilution Helps Reduce Uranium Mill
Contamination'', Gallup Independent, May 5-6, 2018.
\39\ Homestake is now proposing to the National Remedy Review Board
that the remediation effort be halted as complete remediation is
characterized as unfeasible. See, National Remedy Review Board on EPA's
Proposed Plan for Homestake Mining Company Superfund Site, CERCLA #
NMD007860935. The Pueblo of Acoma opposes any determination that
remediation should be excused.
\40\ https://www.epa.gov/newsreleases/epa-administrator-andrew-
wheeler-updates-superfund-emphasis-list-adds-san-mateo-creek
---------------------------------------------------------------------------
Today, it is acknowledged that the groundwater within the Rio San
Jose Basin has been and continues to be mined without replacement.
Withdrawals far exceed recharge. It is no longer a renewable supply
that can be sustained into the future, and absent restriction of all
non-Pueblo uses, will never be replaced. Surface flow at the western
boundary of the Pueblo of Acoma Grant, fed by springs and groundwater,
have decreased from average annual flow measured at the federal gauge
of over 10 cfs in 1940 to more recent levels in the range of 2 to 3
cfs. and the flow continues to decrease. Experts agree that even if the
United States now enjoined most of the upstream users, the water supply
is so depleted that it would take decades for sufficient water to reach
the Pueblos to meet minimal needs.
This Legislation and the Settlement Would Give Acoma an Opportunity for
a Very Different Water Future
This proposed settlement, unlike a prohibition on all upstream
users, will make alternative water supplies available to the Pueblo,
forgoing enforcement of the Pueblo's senior priority in time of
shortage. Acoma will be required to give up the full senior priority
that normally attaches to time immemorial rights in times of shortage.
This is a significant loss to Acoma, but the ability to get wet water
is a trade-off that Acoma is willing to make. Damages attributable to
the United States' actions and failures to act on behalf of Acoma alone
equal almost $500 million. \41\ The greatest part of these damages goes
to the cost of locating and bringing a wet water supply to the Pueblo
that does not affect all the other water users in the Stream System.
The promise of the 1924 Pueblo Lands Act to replace water lost water
will be met. S.4898 would provide funding for feasibility studies to
determine if water in the only presently unused aquifer in the Stream
System, the Westwater Canyon Member of the Morrison formation, can be
sufficiently treated and transported to the Pueblo to provide a water
supply equal only to what it consumptively used for irrigation in the
past, the 1,870 acres. Even if this is not ultimately feasible, the
same level of funding is required to locate, treat and maximize
whatever sources can be found in the Stream System. It also provides
funding for improvements to the water delivery systems of all users,
Milan and Grants, and the Acequias at State expense, so that the
present diminished water supply can be conserved and used more
efficiently for all.
---------------------------------------------------------------------------
\41\ The trespass damages and replacement costs were determined by
Industrial Economics Incorporated, Economic Damages to the Pueblo of
Acoma Resulting from U.S. Actions and Failure to Prosecute Water
Rights, November 2020, The report has been shared with Congressional
Staff and the United States. The replacement costs were updated as of
April 25, 2022 based upon settlement agreement terms.
---------------------------------------------------------------------------
With this fund-based settlement, the Pueblos of Acoma and Laguna
are taking the risk and responsibility for their water future in light
of the federal government's past failures. Even so, it cannot be said
that this will make the Pueblo ``whole'' as to the damages suffered.
Note that Acoma is not claiming any future losses due to its inability
under the agreement to fully use its full measure of senior priority
water rights as set forth in the settlement. At present, this amount
cannot be fully determined so as to be quantified for purposes of
settlement. However, in the absence of settlement, the United States
and the Pueblos would have to continue to litigate to quantify all of
the Pueblo's water rights and enforce the Pueblo's full senior priority
in times of shortage in the Rio San Jose Basin and in the Rio Salado
Basin. While no adjudication has been initiated in the Rio Salado
Basin, the settlement addresses the claims that the United States would
be bound to litigate and enforce in that Basin as well. The costs of
that enforcement effort would be extensive. Almost 100 years ago, the
United States Attorney General was told that it was necessary to take
this action to protect the Pueblos' ability to use their water. The
United States failed to act for a very, very long time, and now the
cost of protecting and enforcing the Pueblo of Acoma's time immemorial
water right is much greater.
Approval of the Settlement brings something of much greater value
to the Rio San Jose Stream System. It is the product of an intensive
collaborative effort among all governments and Stream System users. It
contains procedures for consultation and to allow for full
participation in water management decisions by all parties that must
rely on this very scarce water supply. This is a water future that
Acoma desperately needs and supports whole-heartedly.
Senator Murkowski. Thank you, Governor.
The Chairman. [Presiding.] Thank you very much for your
testimony. The Honorable Martin Kowemy, Governor of the Pueblo
of Laguna. Thank you.
STATEMENT OF HON. MARTIN KOWEMY, JR., GOVERNOR, PUEBLO OF
LAGUNA
Mr. Kowemy. [Greeting in Native tongue.] Good afternoon,
Chairman Schatz and Vice Chair Murkowski and members of the
Committee. My name is Martin Kowemy, Jr., and I am the Governor
of the Pueblo of Laguna. The traditional name of the Laguna
people is Kawaika, meaning lake people.
I am here today to discuss S. 4898, the Pueblos of Acoma
and Laguna Water Rights Settlement Act of 2022. The lack of
water in the Rio San Jose Basin is over 150 years in the
making. Today our basin is one of the driest in the State of
New Mexico, if not the Country. Without Congressional action,
things could only get worse.
The Pueblo of Laguna's economy has historically relied
heavily on subsistence style farming and trade. We use water
from the River San Jose to produce food to feed our families
and to sell or trade for other necessary items.
Our ancestors, in addition to being farmers, were master
dam builders and water engineers. We designed and built vast
systems of irrigation ditches and massive reservoirs before our
first contact with the Spanish. We irrigated our lands using
these systems until the United States began replacing them with
concrete structures in the early 20th century.
However, the Federal Government neglected to maintain or
rebuild the system they imposed on us, and we could not
maintain using our traditional methods and materials. The
Laguna Reservoir built by our ancestors stood the test of
centuries.
Yet, you visit our pueblo today, you will not see that
reservoir next to the village of Laguna, the principal village
of the six villages in our community. Nor will you see the new
Laguna Reservoir built by the U.S. to replace it, because it is
filled in with sediment. The dam breached decades ago. It was
never replaced by our trustee.
During this time, junior upstream users increasingly
accessed the water source that fed our river. Upstream
divergence in the mainstream Rio San Jose began in the late
19th century. In the 20th century, junior users began tapping
the groundwater in ever-increasing amounts. The flow of the Rio
San Jose has dropped over 90 percent from pre-developed levels
at the point where it reaches the pueblo.
Without enough water from the Rio San Jose to grow enough
crops, pueblo members were forced to purchase food instead of
growing it. Despite these devastating losses, we did not stop
maintaining and irrigating from our traditional ditches. We did
not stop our traditional ceremonies. We still use the meager
amount of water remaining to grow what we can and follow our
traditional practices, even though it is not nearly enough to
provide for our people.
This water rights settlement will recognize the Pueblos'
senior water rights and protect what little flow is left in the
Rio San Jose. S. 4898 is a product of over 40 years of
litigation and eight years of negotiation. Despite our request,
the U.S. did not file a lawsuit against major junior
groundwater users on our behalf in Federal District Court until
1982. Some of those users immediately filed a State lawsuit to
start the general stream adjudication and defer resolution of
the Federal claims. The adjudication has crawled along since
then.
In early 2014, the Pueblos and the U.S. and the State of
New Mexico and other major stakeholders decided to look for a
negotiated resolution for the Rio San Jose Basin. Our
negotiations resulted in the settlement agreement that forms
the basis of the legislation before you.
The Pueblo appreciates the State and our neighbors in the
valley for setting aside differences in their interest of a
more water-secure future for everyone in the valley. The Pueblo
needs this water rights settlement, but we believe that
shutting down our neighbors would not solve the problem. Our
approach to this is to find an alternative source of water
supply for the Pueblos.
In keeping our tradition as water engineers, we are not
asking the Federal Government to build a project for us. In our
fund-based settlement, we take on the management and
responsibility of water infrastructure planning, permitting,
development, operations, and maintenance. We, along with the
Bureau of Reclamation, studied the potential water resource of
water infrastructure costs in detail. Our study shows that
finding, developing, and conveying replacement water to our
Pueblo is not cheap.
But in exchange for meaningful funding to secure and
develop water, the Pueblos agree to make no priority calls
against non-Indian users under existing water rights, and not
impair other users on development and use of groundwater by the
Pueblos on Pueblo lands. We believe this is the best resolution
for our Pueblo and the communities in Rio San Jose.
Passage of S. 4898 is necessary to secure the future of the
Pueblo of Laguna. We believe that this settlement provides the
best opportunity for Pueblo to determine its future, because it
empowers us to secure and develop appropriate water sources for
our community.
Thank you for the opportunity to testify. I am happy to
answer any questions you may have.
[The prepared statement of Mr. Kowemy follows:]
Prepared Statement of Hon. Martin Kowemy, Jr., Governor, Pueblo of
Laguna
Good afternoon Chairman Schatz, Vice-Chairwoman Murkowski and
members of the Committee. My name is Martin Kowemy, Jr. and I am the
Governor of the Pueblo of Laguna. The traditional name of the Laguna
people is Kawaika, meaning lake people.
I'm here today to discuss S. 4898, the Pueblos of Acoma and Laguna
Water Rights Settlement Act of 2022. I'm going to tell you about the
history of our Pueblo and changes in our basin necessitating this
settlement. I'll then highlight the major elements of the settlement
legislation and the benefits it will provide to the Pueblo.
Before I start, I'd like to note that the lack of water in the Rio
San Jose Basin is over 150 years in the making. As it stands, our basin
is one of the driest in the State of New Mexico, if not the country,
and without Congressional action things will only get worse.
1. The Pueblo's Long History of Agriculture on the Land Base We Have
Occupied Since Time Immemorial
The Pueblo of Laguna's economy has historically relied heavily on
agriculture, particularly subsistence style farming and trade. \1\ We
used the water available to us to produce food to feed our families and
to sell or trade for items we could not produce ourselves.
---------------------------------------------------------------------------
\1\ Robert L. Rands, 1974, Laguna Land Utilization: an
Ethnohistorical Report, pp. 211-407 in David Agee Horr, ed., Pueblo
Indians IV, New York: Garland Publishing, pp. 328-329.
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We have always been farmers \2\ and water engineers. We know from
our oral traditions, and from recent geo-archaeological investigations,
that our ancestors, in addition to being farmers, were master dam
builders and water engineers. \3\ They designed and built vast systems
of irrigation ditches and massive reservoirs before the first Spanish
contact with Pueblo people. *
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* The images attached to this prepared statement have been reviewed
and retained in the Committee files.
\2\ The sweet corn grown today at our Pueblo is believed to be an
aboriginal cultigen. George F. Carter, 1948, Sweet Corn Among the
Indians, Geographical Review 38(2):218.
\3\ See Gary Huckleberry, T. J. Ferguson, Tammy Rittenour,
Christopher Banet, and Shannon Mahan, 2016, Identification and Dating
of Indigenous Water Storage Reservoirs along the Rio San Jose at Laguna
Pueblo, Western New Mexico, USA. Journal of Arid Environments 127:171-
186; see also Julian Scott, 1893, Pueblos of Laguna, Acoma, and Zuni,
in Moqui Pueblo Indians of Arizona and Pueblo Indians of New Mexico:
Extra Census Bulletin by Thomas Donaldson. Government Printing Office,
Washington, D.C., pp. 123-124.
---------------------------------------------------------------------------
In fact, early Spanish explorers recognized our extensive water
distribution and retention systems and made note of them. The first
mentions of Pueblo irrigation systems in New Mexico were made in 1581
and 1582 by the chroniclers of the Chamuscado-Rodriguez and Espejo
expeditions, respectively. Diego Perez de Luxan's report of the Espejo
expedition describes ``many irrigated planted fields of corn, with
their ditches and dams . . .'' in the area between ``a large lake [una
laguna grande]'' on the Rio San Jose and a place about four leagues
(approximately thirteen miles) upstream. \4\
---------------------------------------------------------------------------
\4\ See Richard Flint, 2015, Laguna Pueblo History Revisited, New
Mexico Historical Review 90(1):7-30 at 20-21; Richard Flint,
Translation and Analysis of Spanish Documentary Sources: Supplemental
Report, Expert Report, Kerr-McGee, 5-8 (Jun. 22, 2012).
---------------------------------------------------------------------------
This laguna would have been the large reservoir behind a dam on the
Rio San Jose built by our ancestors next to Old Laguna. The ditches in
fields within this 13-mile area would have been on lands still held
today by Laguna and Acoma. \5\
---------------------------------------------------------------------------
\5\ See Flint 2015 at 21.
---------------------------------------------------------------------------
The Laguna people continued to rebuild and maintain our dams and
ditches ourselves throughout the Spanish and Mexican periods and into
the American period. \6\ In 1846, Jacob Robinson, a member of the
Doniphan expedition, described our reservoir at Old Laguna as follows:
---------------------------------------------------------------------------
\6\ See Flint 2015 at 23-24.
Here is one of the most singular marks of civilization ever
seen among the Indians. Across a ravine is built a dam of rock
150 feet long, and 50 feet high; this stops the water that
comes down from the mountains in the rainy season, and forms a
lake six or eight miles in circuit, where otherwise here would
be a dry plain. In the dry season they let out the water as
they need it upon their lands, and thus raise good crops, and
support two thousand inhabitants with large flocks, where but
for this contrivance would have been nothing but the wild and
arid desert. \7\
---------------------------------------------------------------------------
\7\ Jacob S. Robinson, Journal of the Santa Fe Expedition
(Narrative Press, 2001), at 23.
We continued to irrigate our lands using our traditional systems
into the early 20th century. Then in the early 1900's, the U.S. Indian
Irrigation Service began replacing our centuries-old irrigation systems
with concrete structures but neglected to maintain or rebuild the
concrete structures they imposed on us. We could not maintain these
replacement structures using our traditional methods and materials. \8\
---------------------------------------------------------------------------
\8\ See T. J. Ferguson, Traditional Farming at the Pueblo of
Laguna, Expert Report, Kerr-McGee, at 14 (Jan. 24, 2007).
---------------------------------------------------------------------------
The Laguna reservoir built and maintained by our ancestors stood
the test of centuries. Yet if you visit our Pueblo today, you will not
see a reservoir next to the Village of Laguna, the principal village of
the six traditional villages that comprise our vibrant community. The
New Laguna Reservoir built by the U.S. in replacement of our reservoirs
on the Rio San Jose sedimented in and its dam was breached decades ago.
\9\ It still has not been replaced by our trustee.
---------------------------------------------------------------------------
\9\ See Huckleberry et al. 2016 at 176.
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2. The History of Major Upstream Water Development by Junior Users
While the Pueblo increasingly suffered from the cumulative effect
of the U.S. neglect of replacement irrigation structures, junior
upstream users increasingly accessed our water without challenge from
the United States until it was too late to prevent the devasting
impacts to our water supply and our people.
Up until the late 19th Century, the Pueblos of Acoma and Laguna
(collectively ``Pueblos'') irrigated thousands of acres of agricultural
fields along the Rio San Jose.
Upstream diversions on the mainstem Rio San Jose began in the late
19th Century, depriving both the Pueblo of Laguna and Acoma of surface
water. These diverters included Fort Wingate in the 1860s, a railroad
construction camp in the 1880s that became the City of Grants, and the
Bluewater Toltec Irrigation District which built the original Bluewater
Dam on the headwaters of the Rio San Jose in 1894.
In the 20th century, municipalities in the valley grew and other
groups came to the Rio San Jose Valley. Various junior users began to
exploit groundwater and by the mid-20th Century were making major
groundwater withdrawals:
the City of Grants drilled its first municipal well in 1929;
Grants and other municipal users' increased substantially
starting in the mid-20th Century;
Bluewater-Toltec Irrigation District started tapping
groundwater in the 1940s, and through extensive groundwater
irrigation Grants became known as the Carrot Capital of the
United States;
in the 1950s, uranium mining started up on Mt. Taylor, and
uranium mills opened in the Rio San Jose Valley and started
pumping yet more groundwater; and
a regional coal-fired power plant started pumping
groundwater in the 1980s. \10\
---------------------------------------------------------------------------
\10\ See Frenzel, P. F., Simulation of Ground-Water Flow in the San
Andres-Glorieta Aquifer in the Acoma Embayment and Eastern Zuni Uplift,
West-Central New Mexico, USGs Water Resources Investigation Report 91-
4099 (1992).
Over a century of unimpeded diversions by junior users resulted in
irreversible damage to the water supply. The Pueblos have suffered the
permanent loss of most of the flow from Rio San Jose that has sustained
our people since time immemorial.
Major junior users pumped so much groundwater that the water
stopped spilling from the springs at Ojo del Gallo and reduced the flow
from Horace Springs-both Ojo del Gallo and Horace Springs are major
sources of water for the Rio San Jose historically. The stream flow has
been dramatically reduced from an estimated 16,400 AFY, equivalent to
22.6 cubic feet per second \11\ prior to upstream development to a mere
2.4 cubic feet per second in 2020 at the upstream boundary of the reach
flowing through the Pueblos. \12\
---------------------------------------------------------------------------
\11\ Wolf, Cristopher, Hydrogeology and Geochemistry of Horace
Springs, Pueblo of Acoma, New Mexico. New Mexico Geological Society
Guidebook, 67th Field Conference, Geology of the Belen Area, 397-403
(2016).
\12\ Between October 1990 and October 2004, the average flow had
dropped to 4.21 cfs, and was only about 3.5 cfs in 2004. Based on the
15-minute measurements at the USGS gage the decline has continued, and
in water year 2020 the average flow was only 2.42 cfs. See USGS
08343500 Rio San Jose at Acoma Pueblo, NM, https://waterdata.usgs.gov/
monitoring-location/08343500/#parameterCode=00065&period=P7D.
---------------------------------------------------------------------------
This loss of water has had a profound effect on the Pueblo
community and its culture. Depleted stream flows substantially reduced
the Pueblo's ability to irrigate its agricultural fields on the
mainstem Rio San Jose and forced members of the Pueblo to purchase food
instead of growing it and selling or trading it for other needed items.
\13\ We have important ceremonies that require a flowing river, but at
times now the Rio San Jose is dry and this is heartbreaking. Equally
devastating is the effect of lost flow on our riparian zone that has
nurtured native plants and medicines we harvest for our ceremonies.
Intermittent stream flow, and shortages and loss of traditional-use
plants on our lands, affects how we conduct our traditional ceremonies.
---------------------------------------------------------------------------
\13\ See Ferguson 2007 at 145-149; see also Paul V. Hodges, Report
on Irrigation and Water Supply of the Pueblos of New Mexico in the Rio
Grande Basin, National Archives RG 75, E657 (1938) at 362; John J.
Ward, Rebuttal Opinion: Analysis of the Undepleted Flows in the Rio San
Jose and Tributaries, Acoma and Laguna Pueblos, Expert Report prepared
for the United States, Kerr-McGee, at 18-23 (Nov. 29, 2010).
---------------------------------------------------------------------------
While we have borne the brunt of the impacts of water development
by junior users, located as we are at the bottom of the stream system,
we did not stop maintaining our ditches and calling the water down from
the mountains and from Bluewater Creek. We did not stop irrigating from
our traditional ditches, and we did not stop our traditional
ceremonies. We used, and continue to use, the little water that remains
to grow our crops and follow our traditional practices.
Hydrologic studies by the U.S. and the Pueblos indicate that even
if all current junior water users stopped using water in the Rio San
Jose basin, the system has been so depleted that the system would not
recover to provide historical flow levels in the Rio San Jose in the
Pueblos' reach for decades, if ever.
Yet we will continue to use what remains of the river's flow, even
though it is not nearly enough to maintain our way of life. We need
water for drinking and cooking, for everyday use, for ceremonial and
cultural uses, as well as for the economic development needed to
provide for our people.
We need your approval for this water rights settlement to recognize
the senior water rights of the two Pueblos, and to protect what little
flow is left in the Rio San Jose.
3. The Water Settlement Negotiations
S. 4898 and the water settlement it ratifies is the product of over
40 years of litigation and eight years of negotiation.
The Pueblos, as the most senior water users in the stream system,
implored the U.S. to protect our water supplies from these upstream
users early in the U.S. superintendency following the Treaty of
Guadalupe Hidalgo in 1848. It was over a century before the U.S. took
action. Finally, in 1982, the U.S. filed a suit on behalf of the
Pueblos of Laguna and Acoma against major junior groundwater users in
federal district court claiming damages for trespass and seeking
injunctive relief. \14\ To protect themselves from the trespass suit,
some of those users immediately filed lawsuits in state court to start
a general stream adjudication of the Rio San Jose. \15\
---------------------------------------------------------------------------
\14\ United States v. Bluewater-Toltec Irrigation. District, No.
82-cb-1466 (D.N.M).
\15\ See United States v. Bluewater-Toltec Irrig. Dist., 580 F.
Supp. 1434 (D.N.M. 1984).
---------------------------------------------------------------------------
In this way, the junior users started the water rights adjudication
known as New Mexico ex rel. Martinez v. Kerr-McGee Corp., and the
trespass case was ``deferred'' by the federal court in favor of the
general stream adjudication. As a consequence, relief to the Pueblos
was delayed another 40 years while the adjudication slowly ground
forward.
In the spring of 2014, instead of continuing on a litigation path
that chooses winners and losers in our stream system, we, along with
the United States, the State of New Mexico, the Pueblo of Acoma and
other major stakeholders, decided to look for a different, negotiated
resolution for the Rio San Jose Basin.
Negotiations continued for eight years, resulting in a Settlement
Agreement among various local parties that forms the basis of the
settlement legislation before you. The parties who have signed the
Agreement are:
Pueblo of Acoma
Pueblo of Laguna
Association of Community Ditches of the Rio San Jose
State of New Mexico
City of Grants
City of Milan
Bluewater Toltec Irrigation District
La Acequia Madre del Ojo del Gallo
Moquino Water Users Association II
Murray Acres Irrigation Association
San Mateo Irrigation Association
Seboyeta Community Irrigation Association
Cubero Acequia Association
Cebolletita Acequia Association
Community Ditch of San Jose de la Cienega
The Navajo Nation has been active in the negotiations since 2018.
As stated in the Settlement Agreement, the parties intend to reach a
settlement with the Navajo Nation that will be an addendum to our
Agreement, and the Nation will become a party and signatory to the
Agreement upon written consent of the Nation and the parties. \16\
---------------------------------------------------------------------------
\16\ See Joint Status Report, Kerr-McGee, filed Oct. 28, 2022.
---------------------------------------------------------------------------
4. Key Provisions of the Settlement Agreement and Legislation
We need a water rights settlement to recognize and protect the
senior water rights of the two Pueblos, and to protect what little flow
is left in Rio San Jose. But we understand that shutting down our
neighbors will not solve the problem. After more than a century of our
trustee failing us, it is too late for that solution.
Instead of seeking to curtail other water users, the Settlement
approach is to find alternative sources of supply for the Pueblos.
We studied alternative water sources and water infrastructure costs
together with the Bureau of Reclamation in a detailed, year-long Value
Planning Study process. As that study showed, finding, developing, and
conveying to our Pueblo homelands replacement water in the Rio San Jose
Basin today is not cheap.
In keeping with our tradition as water engineers, we are not asking
the federal government to build a project for us. In our ``fund-based''
settlement we take on the management and responsibility of water
infrastructure planning, permitting, development, operation and
maintenance-instead of the federal government.
Our settlement trust fund established in the legislation is not
attached to a particular water supply project because the Pueblo wishes
to further assess the alternatives and exercise our self-determination
in selecting sources of water to develop for our Pueblo lands and
people.
In exchange for meaningful funding to secure and develop water, the
Pueblos agree to:
make no priority calls against non-Indian uses under
existing water rights; and
not impair other users in development and use of groundwater
by the Pueblos on Pueblo lands.
The main elements of this comprehensive settlement of Pueblo water
rights include the following:
This Act fairly and finally settles the claims of the Pueblo
of Laguna, and the United States acting as the trustee for the
Pueblo of Laguna, in the general stream adjudication of the Rio
San Jose Stream System entitled, ``State of New Mexico, ex rel.
State Engineer v. Kerr-McGee, et al.,'' pending in the
Thirteenth Judicial District Court for the State of New Mexico.
The Act also recognizes water rights of the Pueblo of
Laguna, and the United States acting as the trustee for the
Pueblo of Laguna, in the Rio Puerco Basin and limits future
claims for the Pueblo's water rights in that basin.
The legislation establishes a separate trust fund for each
Pueblo. The following amounts are authorized for the Pueblo of
Laguna:
--$464 million in the Laguna Water Rights Settlement Account,
to be used for water infrastructure development, acquiring
water supplies, Pueblo Water Rights management and
administration, watershed protection and enhancement, support
of agriculture, water-related Pueblo community welfare and
economic development, and settlement implementation costs, and
$15 million of this amount is to be made available upon
appropriation for installing groundwater wells on Pueblo lands
to meet immediate domestic, commercial municipal, and
industrial needs;
--$26 million in the Water Infrastructure Operations and
Maintenance Account; and
--$3.25 million in the Feasibility Studies Account, to be
made available upon appropriation, to facilitate our selection
of alternative water sources.
A further $50 million is authorized by the legislation for
the Acomita Reservoir Works Trust Fund, a joint trust fund for
the two Pueblos, to be made available upon appropriation for
the purpose of rehabilitating this BIA-constructed reservoir
and appurtenances that was built to provide water storage for
both Acoma and Laguna but has been in disrepair for many years.
Under the Settlement, each Pueblo's water rights will be
administered on Pueblo lands under a Pueblo Water Code
similarly to water rights administration by the New Mexico
State Engineer on non-Indian lands.
The Pueblo permit processes will include substantive and
procedural protections for protestants, including the
opportunity to appeal Pueblo water permitting decisions to the
state court.
The Acequias will receive funding from the State for water
infrastructure improvements and other purposes, and the City of
Grants and the Village of Milan will receive funding from the
State to improve their water and wastewater infrastructure. The
hydrologic benefits of these improvements will, in turn,
mitigate impacts of Pueblo water development.
In considering these costs of our settlement, it is essential to
remember that we lost the abundant, low cost, renewable surface water
in our homeland on the United States' watch, through no fault of our
own.
5. Conclusion
Passage of S. 4898 is absolutely necessary to secure the future of
the Pueblo of the Laguna. We believe this fund-based settlement is the
best opportunity for the Pueblo to determine its future by securing and
developing ourselves appropriate water sources for our community.
This settlement will provide us with the means to procure the water
needed for everyday uses and enable our people to survive and thrive on
our homeland. Without a secure water supply, our ability to continue to
live and work on our own land, as we have for centuries, is at risk.
Thank you for the opportunity to testify today. I'm happy to answer
any questions the Committee may have.
The Chairman. Thank you to all of the testifiers. I will
now turn to Vice Chair Murkowski for her questions.
Senator Murkowski. Thank you, Mr. Chairman. Those who have
been wondering where members are coming and going, we are in
the midst of a vote. So I am going to be excusing myself after
this. The Chairman has already done that.
To you first, Secretary Newland. And before I ask my
question, I want to appreciate those of you who have given
testimony in walking us through, educating us on what it means.
We certainly heard from your comments, Chairman Peyron, the
significance of what it means, these shortages, to the people
in your tribe. We heard very clearly the significance of where
we are.
Secretary Newland, you heard me in my opening comments, my
concern about this mega-drought, the impacts that it is having
on the Colorado River system as a whole. Earlier this summer,
the Bureau of Reclamation Commissioner, Camille Touton,
testified before the Energy Committee that due to this mega-
drought, the river system is literally on the brink of
collapse, again, affecting not just those who depend on the
Colorado River but everyone in the west.
Can you share with the Committee what actions the
Department is taking to protect water users' existing water
supplies, particularly those held by our tribal nations that
many are represented here?
Mr. Newland. Thank you, Vice Chair. On the whole, or with
respect to the Colorado River?
Senator Murkowski. I am not expecting you to solve the
Colorado or the mega-drought. If you could do that, we would
take you from this seat and put you to work on it right away.
[Laughter.]
Senator Murkowski. But clearly, you have users that are
very, very stressed right now. Is the Department taking
specific actions to address that?
Mr. Newland. We work across all of our bureaus on the
Colorado River in particular to make sure that we are being
inclusive of everyone who is affected. I know that my
colleagues at the Department, including the Commissioner, are
working with tribal leaders in the basin to make sure that we
are meeting our trust obligations to the tribes and that we are
consulting with them on steps that the Department would take.
But overall, when it comes to water in the west, as I
indicated in our testimony, we take our trust obligation very
seriously to make sure that tribes have the ability to maintain
their way of life on their homelands. That requires the ability
to have access to water. The bills that we are testifying on
today are reflective of that commitment and our position on
them.
Senator Murkowski. So let me ask then, because these are
settlements that have been in the making for decades, we have
heard. Does what we are living through right now with this
mega-drought affect any of these water settlements that we are
considering today? In other words, it may have made agreements
based on a direction that just isn't realistic today.
Mr. Newland. Thank you, Vice Chair, for that question. That
is something that our teams negotiating these settlements are
always trying to bear in mind, is that these are workable
settlements, because we want certainty going forward.
As I indicated, these are good bills and good settlements
based on the data that we have been able to collect over the
last four decades, at least with respect to New Mexico, and the
last three decades with respect to the Tule River bill. We
think the tribes have, as I understand, have agreed to use the
fund-based approach to these settlements and all of the risk
that comes with that to make sure that they have access to
resources now.
Senator Murkowski. One more question for you. This relates
to the funding. As you know, I am appropriators, we both are
appropriators up here. Oftentimes, the toughest thing is
identifying the financial resources, the long-term investments
by the Federal Government to make these settlements actually
work and result in what you are all hoping for, which is the
delivery of wet water. Historically, the most common source of
funding for Congressionally approved water settlements is
discretionary spending. Congress has authorized mandatory
appropriations in concert with discretionary funding
authorizations in some cases, including for individual Indian
water settlements.
The settlement legislation in front of us today includes
mandatory appropriations. Can you speak to this about whether
or not the Department supports mandatory spending for each of
these measures, and if so, any offsets that the Department may
have identified to address this?
Mr. Newland. Thank you, Madam Vice Chair. The benefit of
having these kinds of disputes settled is to bring certainty,
not only to the Tribes but everyone in the affected basins. One
of the things that helps bring certainty is knowing that there
will be certainty of funding and mandatory funding is one way
to do that. We also know that Congress was the leading
authority on appropriations, and we respect that.
But we support these bills, subject to some of the things I
highlighted in our written testimony. With respect to offsets,
I don't have an answer for you today, Madam Vice Chair. I would
be happy to follow up.
Senator Murkowski. Great. I would appreciate that. Again,
my thanks to all who have provided testimony and truly, for
your decades of work on very, very important issues. Thank you,
Mr. Chairman.
The Chairman. Thank you, Vice Chair.
Secretary Newland, S. 4870 includes a transfer into trust
of lands needed to ensure the integrity of the water resource
and other cultural resources for the tribe. Does Congress have
the authority to direct land transfers? How common are
transfers like this in tribal water settlements?
Mr. Newland. Thank you, Mr. Chairman. Congress does the
authority to direct Federal lands to be transferred to the
Secretary in trust for the benefit of tribes. There is
precedent for that in other water settlement bills. For
example, the Salish and Kootenai water settlement in Montana
included a transfer of the National Bison Range in trust to the
Tribe. I think that is a good example of the comprehensive
solutions that we can achieve through settlements.
The Chairman. Can you tell me about your experience, in
your experience, what are the benefits of returning lands like
these to tribal management through trust transfers, co-
management or other regimes?
Mr. Newland. Thank you, Mr. Chairman. The Tule River Tribe
is a great example of some of the benefits here. When I visited
this summer, the Chairman took me up into the highlands on the
reservation to see where they had been impacted by a recent
wildfire. They have ancient sequoia trees on the reservation,
and you could see there had been a fire. But because of the
Tribe's land management practices, the sequoia trees themselves
were left standing. It was impressive to see.
Then as we continued on our trip and traversed the
reservation boundary, we saw where the Tribe wasn't managing
lands, and the trees, the sequoia trees and the rest of the
forest were burned. I think that speaks to what happens when
tribes are managing lands according to their traditional
knowledge, their understanding of their own homelands, and the
benefits that brings.
That is what we are trying to do through the joint
secretarial order that Secretary Haaland has signed onto on co-
stewardship which also speaks to returning Federal lands to
tribal management and ownership in certain instances.
The Chairman. What is the status of the implementation of
that secretarial order? Because it is two Secretaries sort of
establishing a policy, it is new. So where are we with
implementation there?
Mr. Newland. At the Department of the Interior, I can say
that we have guidance now from bureau directors at other land
management agencies, including the Park Service, Fish and
Wildlife Service, that provide clear direction to folks in the
field on how to set these agreements up. The Department of the
Interior has reached a number of these types of agreements.
Also, Mr. Chairman, earlier this summer I visited the Grand
Portage Reservation in Minnesota where we have had a co-
management agreement between the Park Service and the Tribe for
several decades with a self-governance compact to bring funding
with it. It has been very successful.
The Chairman. Thank you very much, Mr. Secretary.
Chairman Peyron, can you talk to me about your community's
reliance on bottled water and what that really means for
hygiene, sanitation, and the ability for people to work and go
to school? Tell me about the human impact, please.
Mr. Peyron. Yes, Mr. Chairman. Thank you. I can speak to
that.
Children can't go to school at all. There is no water, so
they can't have clean clothes. Not only does it affect them
with the ability not to have water to drink or to cook with, it
also affects their mental and emotional health when they are
going to school and they are made fun of because they couldn't
bathe, or they had to wear dirty clothes. Their parents can't
go to work to make money to pay the bills to put food on the
table, to keep the air conditioner going in the summer months
and keep the heat going in the winter.
At times, just recently, about a month ago, we had to shut
down our medical facility because it lost water to the
facility. So people who had medical appointments, people who
have life-sustaining treatments that they need to get to can't
do that. They have to drive 20 miles to the nearest hospital in
the city of Porterville.
It also impacts other services that the Tribe provides. If
the water goes out, a lot of the reservation relies on
evaporative cooling, so we have to open up our cooling centers,
shut down governmental buildings so that our elders and our
people who really need that assistance can go there so they can
cool when it's 110 outside.
Not only that, when we got hit with the COVID pandemic, it
limited the availability of space in those buildings. Again,
people were forced to just tough it out. Unfortunately, my
people have become acclimated to this. So if you call and you
ask, we are going to say, everything is fine, because that is
what we do. We take care of ourselves, we adapt, and we
continue to persevere regardless of our situation.
For some of us on our reservation, this is our third home.
We started on the Sebastian Reservation near Fort Tejon, south
of Bakersfield. Then we were moved to the Madden Farm, then
that land was taken and we were moved again to the current
reservation. The superintendent that we had said, hey, there is
not enough land, there is not enough water. So they doubled the
size of the reservation that same year, 1873, to 92,000 acres.
Then it was shrunk down again for some reason. Some people did
not want to move off that land. They petitioned Congress and it
was changed again.
So we have been living decades, hundreds of years, dealing
with this. Now it is affecting us to the point with the drought
and climate change that if we can't get a reservoir to catch
the water when it is raining in the wet season, there is no
water there in the summer. Up to 80 percent of my people's
drinking water comes from the South Fork Tule River that we
lost because the superintendent, without consulting the Tribe
in 1922, signed an agreement with the downstream users
quantifying their rights to the South Fork Tule River.
Unfortunately, ours was never quantified. We had to come up
with an agreement in 2007 that was signed quantifying 5,828
acre feet. We are still trying to get the funding again. That
agreement said that the United State would provide development
for water structures on the reservation delivery systems. We
are still waiting.
We are operating off a 1960s irrigation line that was put
in by Indian Health Services for a total of 60 homes. There are
currently 362 homes and 14 commercial buildings surviving off
that same system. That is where that $2 million from the State
of California came in to assist us with updating that.
So it affects us across a wide spectrum. You can't go to
work, you can't go to school, which causes other problems
because now you are getting letters from, in California it is
called the SARC board, because your kids aren't going to
school. Apparently not having drinking water at home and being
able to flush the toilets and take a shower is not an excusable
reason.
Those are the things that we deal with in our area. Again,
we adapted.
So those are the problems we have. If there is a fire, and
we have to fight that fire, we depressurize our system, and
again, we are without water. We are at the end of the Southern
California Edison grid, so our power is brown anyway. Because
our terrain, as the Secretary can attest to, is pretty steep,
we go from 900 feet to 7,600 feet rather quickly. So a lot of
homes require pumping of water. You can't gravity feed uphill.
So when the power goes out, guess what? You don't have any
water. That is the situation we live with every day. It used to
be from the months of May to September. Now it is beginning in
April and sometimes it will end about now. I think we got our
first rain right before we came here this week.
Those are the things that it is impacting.
The Chairman. Thank you very much. Senator Lujan?
Senator Lujan. Thank you, Mr. Chairman.
Assistant Secretary Newland, you mentioned that targeted
changes are need to S. 4898 to protect allotees. Yes or no, are
you committed to working with Senator Heinrich, myself, and the
Committee on this issue?
Mr. Newland. Yes, Senator.
Senator Lujan. Governors Kowemy and Vicente, this
legislation makes water available as climate change continues
to strain the water supply in the southwest. Key to this is
providing funding to find an alternative water source in the
basin that doesn't limit junior water users.
Governor Kowemy, yes or no, does this settlement address
the water shortage issues now and in the future that the Pueblo
face, given the potential impacts of climate change down the
road?
Mr. Kowemy. Yes.
Senator Lujan. Governor Vicente?
Mr. Vicente. Yes.
Senator Lujan. This question is for three of our witnesses,
and I would ask for a simple yes or no answer. The Navajo
Nation is currently engaged in its own process to approve its
portion of the settlements, and the Pueblos are working hard to
help get a resolution. Yes or no, will you commit to continue
working with the Nation on its claims in the Rio San Jose Basin
to get the settlement completed quickly? Assistant Secretary
Newland?
Mr. Newland. Yes.
Senator Lujan. Governor Kowemy?
Mr. Kowemy. Yes.
Senator Lujan. Governor Vicente?
Mr. Vicente. Yes.
Senator Lujan. Governors Loretto and Galvan, the focal
point of S. 4896 is augmentation projects on Jemez and Zia
lands that benefits all users. How will these projects
strengthen relationships between the Pueblo and non-Pueblo
communities in the basin? Governor Loretto.
Governor Loretto. Yes, the relationships among the Pueblos
and its non-Indian neighbors already is strong. We have
established a good working relationship and our relationship
with hopefully the process going through will even bring us
closer together, to work together.
Senator Lujan. That is good to hear.
Governor?
Mr. Galvan. Yes, pretty much the same, given that Zia has
and stands on a good working relationship with the communities
upstream.
Senator Lujan. I appreciate that. That is to be applauded.
I certainly appreciate the work that has been done on each
of these two pieces of legislation and bringing communities
together, and having conversations and making adjustments, even
though this was decades in the making. But the conversation in
the last decade have made immense progress. I also again want
to thank the State for being here to show their support in
making this happen and make this a reality.
Mr. Chairman, I would ask unanimous consent to submit
letters of support for both S. 4898 and S. 4896.
The Chairman. Without objection.
Senator Lujan. I yield back, thank you.
The Chairman. Thank you very much. If there are no further
questions for our witnesses, witnesses may also submit follow-
up written questions for the record. The hearing record will be
open for two weeks. I want to thank all the witnesses. I know
how much of a hassle and a strain it is to fly across the
Country to be here. We really do appreciate it, and all the
staff and all the tribal members who are here for your
testimony and participation today.
This hearing is adjourned. Thank you.
[Whereupon, at 3:57 p.m., the hearing was adjourned.]
A P P E N D I X
Prepared Statement of Hon. Erik Garcia, Mayor, City of Grants
Chairman Schatz and Committee members, I am Erik Garcia, Mayor of
the City of Grants, New Mexico. I appreciate the opportunity to submit
this testimony to you today and provide comments on behalf of the City
of Grants (``City'') in support of the Pueblos of Acoma and Laguna
Water Rights Settlement Act of 2022, Senate Bill 4898 (the ``Settlement
Act'').
The Settlement Act would resolve the water rights claims of the
Pueblos of Acoma and Laguna, which have been litigated for at least
four decades. The City strongly urges passage of the Settlement Act,
which quantifies and settles the water rights of the Pueblos and
provides benefits for the non-Indian community. In a unanimous vote on
May 6, the Grants City Council approved the Local Settlement Agreement
(``Local Settlement''). In addition to ending decades of litigation,
the Local Settlement would provide funding for infrastructure to
provide wet water to the Pueblos and significant benefits to the City,
the Village of Milan and the nine Acequias in the area. The City would
benefit from the economic development fostered by the funding for the
Pueblos, and the City would conserve water and upgrade its own water
infrastructure with the $12.5 million included in the Local Settlement
to be provided from the State of New Mexico. The funding also would pay
for the Joint Grants-Milan Project for Water Re-Use, Water Conservation
and Augmentation of the Rio San Jose that will provide additional wet
water to the system.
The City Council did not make this decision lightly-it has invested
significant time and resources over the past several years to build
trust with the other parties and work together to solve problems in the
Rio San Jose Stream System. The City has participated in extensive
mediation sessions over at least the past five years, working through a
painstaking process to draft the Local Settlement and the Settlement
Act.
The Local Settlement and the Settlement Act together protect the
water rights of the City and others by allowing continued use of water
rights without the threat of priority calls by the Pueblos. The Pueblos
hold time immemorial priority dates and could create chaos if they
chose to enforce their priorities. Further, the Local Settlement
protects non-Pueblo water users for the future because the Pueblos
agreed to prohibit impairment in any water rights permits they issue.
The City and Pueblos also promise to take steps that will keep
communications open and facilitate cooperation on water infrastructure
in the future.
Two other features of the Settlement Act are critical to Grants and
other non-Indian parties: (1) the limited waiver of sovereign immunity
by the United States and the Pueblos of Laguna and Acoma and (2)
jurisdiction in the State of New Mexico District Court for the 13th
Judicial District for settlement-related issues. These provisions
ensure state-court based interpretation and enforcement of the Local
Settlement and the court decree for the Pueblos' water rights, as well
as state court jurisdiction to hear appeals of decisions on Pueblo-
issued water rights permits. This state court-based review gives the
City and other non-Indian parties assurances that they will be heard in
a fair forum if they have disputes with the Local Settlement, the
decree, or Pueblo-issued permits. These guarantees were key in the
City's decision to sign the Local Settlement and must be carried
through in the Settlement Act.
Thank you again, Chairman Schatz and Committee members, for the
opportunity to provide the City of Grants' views on this critical piece
of legislation.
______
Prepared Statement of Michael A. Hamman, P.E., New Mexico State
Engineer
Mr. Chairman Schatz, Vice Chair Murkowski, and members of the
Committee, I am Michael A. Hamman, P.E., New Mexico State Engineer. My
agency, the Office of the State Engineer, is responsible for the
administration of water rights in New Mexico. The State Engineer has
authority over the supervision, measurement, appropriation, and
distribution of all surface and groundwater in New Mexico, including
all interstate streams and rivers. I appreciate the opportunity to
submit this testimony to you today and provide comments on behalf of
the State of New Mexico in support of the Pueblos of Acoma and Laguna
Water Rights Settlement Act of 2022, S.4898.
This legislation offers a historic opportunity to authorize funding
for the Pueblos of Acoma and Laguna to secure and develop water
sufficient to support their permanent homeland, while also protecting
the scarce water supplies and existing water uses in the Rio San Jose
Stream System in western New Mexico. It will also resolve the water
rights claims of the Pueblos by authorizing, ratifying and confirming a
comprehensive settlement agreement among the State, the Pueblos of
Acoma and Laguna, the City of Grants, the Village of Milan, and the
Association of Community Ditches of the Rio San Jose, along with its
nine area Acequias and community ditches. The settlement represents the
culmination of 40 years of litigation and subsequent negotiations among
the signatories, Navajo Nation, and the United States as trustee for
the Pueblos and Nation, and would not have been possible without their
support and active participation in the negotiations. In addition, we
are hoping to finalize a supplemental settlement that will resolve the
claims of the Navajo Nation within the Rio San Jose stream system as
well, which will bring additional certainty and finality for all
parties.
The Rio San Jose stream system is located in western New Mexico and
is one of the most water-scarce stream systems in the State. For
centuries, the Pueblos of Acoma and Laguna irrigated thousands of acres
along the Rio San Jose and its tributaries. This supply has been
dramatically reduced as a result of upstream uses of surface water and
groundwater by non-Pueblo users over the past century. One of these
uses, uranium mining, has led to widespread contamination of
groundwater in the area.
Most Acequias and other traditional non-Pueblo water uses in this
region date back to the 1800s and rely on diminished surface water
supply. Acequias have suffered from the same drop in surface supplies
as the Pueblos. Current Acequia irrigation is only a fraction of what
it was historically due to lack of water supply.
Today, the Pueblos of Acoma and Laguna, the City of Grants, the
Village of Milan, various Acequias, Navajo Nation chapters and
industrial users continue to rely on water from the Rio San Jose stream
system, including surface water from the Rio San Jose, and groundwater
from the Bluewater and Rio Grande Basins. Climate change has compounded
the lack of water, and, like other western states, New Mexico is
experiencing extended periods of drought, furthering the strain on
surface water supply.
The proposed settlement will quantify the water rights of Acoma and
Laguna Pueblos. It will also provide funding for the development of
alternative water sources for the Pueblos. It will also provide state
funding for needed infrastructure improvements for non-Pueblo settling
parties. Authorizing the settlement will avoid the uncertainty and
expense of protracted litigation regarding the Pueblos' senior water
rights claims. This settlement will resolve 40 years of litigation
regarding the Pueblos' water rights. If the rights of the Pueblos were
litigated to their conclusion, the only way to increase the flows of
the Rio San Jose for the benefit of the Pueblos would be to shut off
all other users in the steam system. Instead of seeking to curtail
other water users, the settlement contemplates the need to find
alternative sources of supply for the Pueblos.
Recognizing the need for cooperation among the water users in the
stream system and the limited water resources available, the settlement
agreement is structured to allow the Pueblos to develop alternative
sources of water based on availability, hydrologic assessment, and
community need. Additionally, authorizing a fund-based settlement
provides the Pueblos flexibility to determine the scope and design of
future projects and infrastructure.
The Acequias, the City of Grants and the Village of Milan will
receive funding from the State to improve water and wastewater
infrastructure, which will contribute to the efficiency and
conservation in the overall stream system. This approach also
prioritizes Pueblo sovereignty and self-determination by ensuring that
the Pueblos are able to make decisions based on the current and future
interests of their communities, while also considering water use in the
neighboring non-Pueblo communities.
Benefits of the Settlement
The settlement benefits the Pueblos and non-Pueblo water users by
fully resolving the water rights claims of the Pueblos while
recognizing the unique hydrologic characteristics of the Rio San Jose
Stream System, and the historic, social, cultural, and geographic
characteristics of each Pueblo, the Navajo Nation, and non-Pueblo water
users. The settlement also recognizes the right of each Pueblo to use
water for its own people and purposes and provides for quantification
of Pueblo water rights, reliability of supply, and economic development
for the Pueblos, both now and into the future.
As part of the Settlement Act, the Pueblos have agreed to give up
their right to request a priority call on junior non-Pueblo water
rights holders, providing security to all water rights holders while
also protecting Pueblo and non-Pueblo water rights in the Rio San Jose
stream system from impairment. The Pueblos have also agreed not to
impair other users in development and use of groundwater for Pueblo
projects, and to limit new depletions on the Rio Grande.
The State believes that the funding authorized by the Settlement
Act will contribute to Pueblo water security and provide significant
economic benefits and employment opportunities to Pueblo members and
residents of the other communities in the stream system. There will
also be broader statewide economic benefits because the scope of these
projects will create demand for additional labor, construction, and
technical expertise from elsewhere in the State.
Finally, the Settlement Agreement creates a mechanism for
cooperation and coordination among the Pueblos and the State regarding
water rights administration, thereby avoiding jurisdictional conflicts
and allowing for comprehensive administration across the stream system.
Mr. Chairman Schatz, Vice Chair Murkowski, and members of the
Committee, the State of New Mexico asks you to support S. 4898. This
legislation will authorize a settlement agreement that is the
culmination of many years of good faith negotiation among the
communities of the Rio San Jose stream system. If approved, the
settlement agreement will create certainty regarding water rights of
the Pueblos and security for all water users in the basin.
Additionally, the infrastructure projects for which the parties seek
funding under the Settlement Act are intended to ensure a sustainable
water supply that it is critical to the continued habitability and
enjoyment of the land for generations to come.
I appreciate the opportunity to submit this testimony to you today
and provide comments on behalf of the State of New Mexico in support of
the Pueblos of Jemez and Zia Water Rights Settlement Act of 2022, S.
4896.
The Pueblo of Jemez, Pueblo of Zia, the State of New Mexico, the
Jemez River Basin Water Users Coalition and the City of Rio Rancho have
reached an agreement after nearly forty years of litigation and
intensive settlement negotiations. The United States as trustee for the
Pueblos of Jemez and Zia actively participated in the negotiations and
we could not have arrived at an agreement without their support. It is
no small matter that the local parties reached this settlement, and
together we urge your support for the Act which would authorize, ratify
and confirm the historic settlement agreement.
New Mexico is a semi-arid to arid state. Like other western states,
New Mexico is experiencing extended periods of drought and declining
surface water supply due to climate change. These conditions threaten
many of the deeply rooted cultural traditions that make New Mexico
unique. This is certainly the case in the Jemez River Basin where the
Pueblos and non-Pueblo acequias rely on the river for traditional
irrigation practices that have existed since long before New Mexico
statehood.
The Jemez River Basin is located in north central New Mexico, and
the Jemez River is a tributary to the Rio Grande. The water users in
this basin include the villages of San Ysidro and Jemez Springs,
unincorporated areas surrounding them consisting of well-established
acequias, and the Pueblos of Zia, Jemez and Santa Ana. Members of these
communities have lived and worked side by side for many generations and
during this time, water supply has dwindled while the demand has only
increased. This stress finally came to a head and in 1983, a general
stream system adjudication to determine all water rights in the Jemez
River stream system was filed. Despite years of ongoing litigation, the
people of the Jemez River Basin continued to live and work together. An
example of their cooperative approach to managing scarce water
resources is that in 1996, the U.S., the Pueblos of Jemez and Zia and
several non-Pueblo ditch associations entered into an agreement whereby
during times of low flow of the Jemez River, a rotation schedule would
be initiated in order to meet the irrigation requirements of the
Pueblos and the associations and the religious and ceremonial
requirements of the Pueblos. In 1997, the court ordered, at the
parties' request, that the Office of the State Engineer act as water
master to help with administration of the rotation schedule. I think
all the parties would agree that the rotation schedule has been
successful with few disputes. These same communities who have lived and
worked side by side and jointly manage a reduced water supply are now
here asking for your support for the Settlement Act.
The Settlement Act is key to resolving long-standing water issues
in the Jemez River Basin, as it addresses the quantification of the
Pueblos' water rights, protects water users in the Basin from
impairment of their water rights, and will help ensure a sustainable
water supply into the future.
Importantly, this legislation will authorize federal funding for
the Pueblos' share of costs associated with an irrigation water
``Augmentation Project'' and other Pueblo irrigation infrastructure
improvements, Pueblo drinking water and wastewater infrastructure
improvements, watershed protection, water-related Pueblo community
welfare and economic development, and other costs related to
implementation of the settlement agreement. The State of New Mexico has
agreed to fund the San Ysidro Community Ditch Association's capital and
operating expenses relating to the Augmentation Project, and much
needed ditch improvements for the Coalition's member acequias. The
State will also fund a Jemez River Basin water master if appointed by
the New Mexico State Engineer.
In sum, we believe this legislation has been carefully crafted to
address water supply needs of the Pueblos and the neighboring non-
Pueblo communities in the Jemez River Basin.
Water Augmentation Project
Because surface water availability in the Jemez River is highly
variable, two separate groundwater well fields are contemplated to
augment the surface water supply from the Jemez River to the Pueblos
and the San Ysidro Community Ditch. One well field will be situated on
the Pueblo of Jemez in and near the Jemez River alluvium. The second
well field will be situated on the Pueblo of Zia southwest of the Jemez
River, near Zia Lake. The augmentation wells will provide groundwater
for irrigation use by the two Pueblos and members of the San Ysidro
Community Ditch Association during periods of insufficient surface flow
in the Jemez River. The two Pueblos and the San Ysidro Ditch
Association will each be responsible for carrying out their respective
Project obligations.
Benefits of the Settlement
The Settlement Act benefits both Pueblo and non-Pueblo water users
by fully resolving the water rights claims of the two Pueblos that have
been pending for nearly forty (40) years in the adjudication case, and
by resolving issues and disputes related to water use in a manner that
recognizes the unique historic, social, cultural, and geographic
characteristics of both Pueblo and non-Pueblo water users, and the
unique hydrologic characteristics of the Jemez River Basin.
As part of the Settlement Act, the Pueblos have agreed to give up
their right to request a priority call on junior non-Pueblo water
rights holders, providing security to all water rights holders while
also protecting Pueblo and non-Pueblo water rights in the Jemez River
Basin from impairment. The settlement also provides for the
establishment of a water master district as a means for administering
the basin for the benefit of all water users. Water master
administration respects the sovereignty and the rights of each Pueblo
as well as the traditional practices and political subdivision status
of the acequias that deliver irrigation water to the non-Pueblo
communities in the basin.
The Settlement Act contemplates federal funding to the Pueblos and
state funding to the San Ysidro Community Ditch to use groundwater to
augment their surface water supplies. As addressed above, this mutual
benefit project provides for alternative administration between the two
Pueblos and non-Pueblo water users and is intended to supplement
surface water supply during periods of low flow. This groundwater
augmentation project will benefit all users, including ten (10)
upstream acequias who, once the project is operational, will no longer
be subject to curtailment from Pueblo priority calls. By providing a
critical buffer against climate change's effects on surface water
supplies, the augmentation project other settlement-funded improvements
will help preserve ancient cultural and agricultural practices,
strengthen the relationship between Pueblo and non-Pueblo communities,
and provide a reliable supply of irrigation water in a chronically
water-short basin.
The State believes that the water infrastructure projects
authorized and funded by the Settlement Act will provide significant
economic benefits and employment opportunities to Pueblo members and
residents of the other communities in the basin. There will also be
broader statewide economic benefits because the scope of these projects
will create demand for additional labor, construction, and technical
expertise from elsewhere in the state.
Mr. Chairman Schatz, Vice Chair Murkowski, and members of the
Committee, the State of New Mexico asks you to support S. 4896. This
legislation will authorize a settlement agreement that is the
culmination of many years of good faith negotiation between the
communities of the Jemez River Basin. If approved, the settlement
agreement will create certainty regarding water rights of the Pueblos
and security for all of the water users in the basin. Additionally, the
infrastructure projects for which the parties seek funding under the
Settlement Act are intended to ensure a sustainable water supply that
it is critical to the continued habitability and enjoyment of the land
for generations to come.
______
Prepared Statement of Hon. Felix O. Gonzales, Mayor, Village of Milan
Mr. Chairman Schatz, Vice Chair Murkowski, and members of the
Committee, I am Felix O. Gonzales, Mayor of the Village of Milan, New
Mexico. I appreciate the opportunity to submit this testimony to you
today and provide comments on behalf of the Village of Milan in support
of the Pueblos of Acoma and Laguna Water Rights Settlement Act of 2022,
Senate Bill 4898.
The Pueblos of Acoma and Laguna, the State of New Mexico, the City
of Grants, the Village of Milan, and the Association of Community
Ditches of the Rio San Jose and its nine member-acequias and community
ditches, have reached a Settlement Agreement resolving the water rights
claims of the two Pueblos within the Rio San Jose Basin which have been
the subject of intense litigation and negotiation since the 1980s.
Milan and the other settlement parties are justifiably proud of their
accomplishment and urge your support for the Settlement Act which would
authorize, ratify and confirm the Settlement Agreement.
Passage of this legislation authorizing the Settlement Agreement is
vitally important to the Village of Milan for several reasons. First,
under the Settlement Agreement the Pueblos have agreed, as a condition
to settlement of their water rights claims, to give up their right to
request a priority call against junior non-Pueblo water users. This
concession by the Pueblos protects Milan because the Pueblos have
senior, time immemorial water rights, and enforcing their priority
could restrict Milan's ability to provide water to residents and
businesses within its municipal service area. The Settlement Agreement
also establishes administrative and judicial procedures for Milan to
protect its municipal water supply from impairment caused by the
Pueblos' future development of their water rights. Finally, the
Settlement Agreement provides for up to $11 million in State funding to
the Village for much needed water infrastructure repairs and
improvements including the repair and rehabilitation of municipal wells
and water storage tanks, replacement of water distribution lines, and
the Joint Grants-Milan Project for Water Re-Use, Water Conservation and
Augmentation of the Rio San Jose. These and other features of the
Settlement Agreement will help ensure a secure municipal water supply
and reliable water infrastructure which are essential to Milan's
ability to provide for the welfare of its residents now and into the
future.
Mr. Chairman and Committee members, the Village of Milan asks you
to support S. 4898. This legislation is critically important to Milan
and the other communities in the Rio San Jose Basin. The Settlement
Agreement is the result of decades of negotiation between these
communities and other stakeholders. If approved, the Settlement
Agreement will create certainty regarding the Pueblos' water rights
which will in turn provide security for Milan and the other non-Pueblo
water users in the basin. Additionally, the infrastructure projects set
out in the Settlement Agreement, including the projects for which the
Pueblos seek federal funding under the Settlement Act, are intended to
ensure a sustainable water supply for both Pueblo and non-Pueblo
communities in the basin. Thank you for your consideration.
______
Prepared Statement of Gilbert Montoya, President, San Ysidro Community
Ditch Association
Chairman Schatz, Vice Chair Murkowski, and members of the
Committee, I am Gilbert Montoya, President of the San Ysidro Community
Ditch Association. I am pleased to submit this testimony in support of
The Pueblos of Jemez and Zia Water Rights Settlement Act of 2022, S.
4896. The San Ysidro Community Ditch is the largest member of the Jemez
River Basin Coalition of Acequias. We respectfully seek your support
for S. 4896, which will approve settlement of water rights claims of
the Pueblos of Jemez and Zia and fund and provide critical benefits to
all water users of the Rio Jemez stream system.
At our meeting on May 11, 2022, our membership resoundingly
approved the Settlement Agreement. Our Commission signed the Settlement
Agreement, and we firmly believe S. 4896 will prove to be the most
important piece of legislation affecting the water resources and
traditional practices in our part of New Mexico. With your help in
enacting this legislation, we will have the historic opportunity to
assure a sufficient water supply in the Jemez Valley for many
generations to come.
Our acequia has provided water for irrigation since 1786, when
Spanish settlers began farming in the Rio Jemez Valley. We are one of
the most senior water users in the valley. Yet, because of inadequate
and declining flows of the Rio Jemez, neither we nor the two Pueblos
receive sufficient supply. Like the other Jemez acequias, we especially
lack good supply during the summer, when irrigation water is most
needed, because of an interim rotation agreement that has been in
effect since 1996. It has become very difficult to grow crops within
San Ysidro because of lack of supply.
Under the settlement, our situation will markedly improve. A key
feature of the settlement is the Augmentation Project that will serve
San Ysidro and the two Pueblos. By constructing a water augmentation
system, consisting of supplemental irrigation wells and ditch works,
the three project partners will have enough water for a full supply in
most years, and a much-enhanced supply even in dry years. San Ysidro
will work hand in hand with the Pueblos to manage the system and make
sure it remains operable over time and functions effectively to provide
water to all three partners. The other acequias will also benefit
because they will no longer be curtailed to get water downstream. This
is a huge benefit for all concerned.
The legislation will authorize federal funds to the Pueblos for
costs associated with the Project and other water and wastewater
infrastructure improvements. The State of New Mexico will fund San
Ysidro's cost share of the Project and will fund ditch improvements for
the other acequia members of the Coalition. Mr. Chairman, Madam Vice
Chair and committee members, on behalf of the Association, I thank you
for your attention to this important matter and ask you to approve this
vital legislation.
______
Prepared Statement of Hon. Juanita Revak, President, Jemez River Basin
Coalition of Acequias
Chairman Schatz, Vice Chair Murkowski, and members of the
Committee, I am Juanita Revak, President of the Jemez River Basin
Coalition of Acequias, and I am pleased to submit this testimony in
support of The Pueblos of Jemez and Zia Water Rights Settlement Act of
2022, S. 4896.
On May 11, 2022, the Coalition Board approved and signed the
Settlement Agreement that is the basis of this legislation. We fully
support the settlement and the legislation needed to implement it. We
greatly welcome the Committee's consideration of this very important
legislation.
The Rio Jemez provides the vital supply of surface water for the
Pueblos of Jemez and Zia and for eleven Acequias, or traditional
community ditch associations, that are members of the Coalition.
Although the Pueblos have time immemorial water rights and the Acequias
have priority dates in the 1700s and 1800s, there is often shortage of
surface supply. Under a 1996 rotation agreement, the Acequias can only
divert one day a week when flows drop in the late spring, continuing
through the summer and into the fall most years. This means through
most of the growing season our members are severely restricted, only
being able to divert water on Mondays. Climate change has made this
situation worse by reducing supply overall and causing rotation to go
into effect sooner and last longer.
The settlement will solve this problem. The Pueblos will receive
funding from Congress and the Acequias will receive funding from the
State of New Mexico to improve irrigation infrastructure to increase
water supply. The heart of the settlement is the Augmentation Project,
which will include supplemental groundwater wells to be operated
cooperatively to make up for shortage when surface flows dwindle. One
of our members, the San Ysidro Community Ditch Association, will be a
direct beneficiary of the project. Because the Pueblos will draw on
groundwater when additional water for irrigation is needed, all our
other Acequia members upstream will be relieved of the current rotation
and may divert available surface supply. The result of this
infrastructure approach is that the Pueblos and all the Acequias will
have much more reliable supply and will no longer vie with one another
for the scarce surface flows. In fact, a cornerstone of the
Augmentation Project is cooperative management among the parties.
The settlement recognizes additional water rights for the Pueblos
but contains safeguards to protect other water users from curtailment
or impairment. In particular, the Pueblos agree not to make priority
calls against other water users, including domestic well owners. Also,
the settlement will resolve issues concerning administration of water
rights in a cooperative and transparent manner that will help avoid
disputes in the future. Furthermore, the settlement contains provisions
protecting traditional acequia practices and property rights.
The Jemez Acequias have good relations with our Pueblo neighbors,
and we surely welcome the end of four decades of litigation that has
plagued our valley since the stream system adjudication, United States
v. Abousleman et al., was filed in 1983. Over the last 40 years, the
parties have been embroiled in litigation and lengthy settlement
discussions to resolve conflicts over the limited surface waters of the
Jemez Valley. Resolving the Pueblos' water rights claims through
litigation or curtailing junior water users based on the Pueblos'
senior priority would not solve the problem of increasing scarcity
within the Jemez River Basin. The Settlement Agreement is the solution.
It will provide funding for ``wet water'' projects to address this
problem. It will foster harmony and cooperation among all water users.
This is a well-crafted, inclusive and comprehensive settlement.
Residents of the Jemez Valley are greatly encouraged and very
supportive of this settlement. Mr. Chairman, Madam Vice Chair and
committee members, the Coalition of Acequias respectfully urges you to
approve this legislation and send it to the full Senate for action.
With this testimony, I am attaching an informational document that we
prepared earlier this year outlining our interests in, and significance
of, this settlement.
Attachment
JEMEZ ACEQUIAS--SETTLEMENT OVERVIEW
Introduction.
The Coalition of eleven historic acequias on the Rio Jemez supports
the settlement because it will protect their historic agricultural
practices and will enhance good relations with the Pueblo of Jemez and
the Pueblo of Zia. Currently in times of low flows, the acequias
receive water only one day per week. Under the settlement, supply will
be greatly increased for both Pueblo and acequia irrigation.
Low flows on Rio Jemez. In the summer and into the fall, flows
on the Rio Jemez often drop to very low levels. Under the
settlement, the Pueblos and the San Ysidro Acequia will share
facilities to increase efficiency and will receive a greatly
needed supplemental supply from the new Groundwater
Augmentation Project. Upstream Acequias will no longer be
restricted to one day of irrigation per week.
History
The Rio Jemez acequias began use of water in the late 1700s, after
the Spanish Crown authorized Spanish settlements along the Rio Jemez
Valley by establishment of the San Ysidro Grant in 1786 and the Canon
de San Diego Grant in 1798. Following the Treaty of Guadalupe Hidalgo's
recognition of prior existing rights in 1848, Congress confirmed the
San Ysidro Grant by Act of June 21, 1860 and its 11,476 acres were
patented in 1936; and Congress confirmed the Canon de San Diego Grant
in 1860 and its 116,286 acres were patented in 1881. In 2000, the
federal district court entered a final judgment and decree recognizing
the acequias water rights on those grant lands.
Governance
Each acequia is a separate governmental entity, governed by a
three-member elected Commission and managed by an appointed Mayordomo.
Each acequia carries on the historic practice of maintaining the shared
diversion and community ditch to supply water to its members or
``parciantes'' for the traditional irrigation of land within the old
Spanish land grants. Under New Mexico law, acequias are political
subdivisions of the State by statute.
Cooperation: Low Flow Operations. Coalition former President
Gilbert Sandoval discusses the importance of working together
to reduce shortages. At this location, the new Orchard Farm
Junction Box will be constructed. It will deliver the augmented
supply to the San Ysidro Community Ditch, including to Zia
Pueblo's Orchard Farm.
Membership and Formation of Coalition
The Jemez River Basin Water Users' Coalition was first formed by
its member acequias as an association in the 1980s. In 2006 it was
incorporated in order ``to protect and defend the water rights of
acequias and their individual members'' in the Rio Jemez River Basin.
The Coalition consists of all of the community ditches irrigating
within the Rio Jemez stream system, a total of 11 acequias, as follows:
Molino Ditch
East Lateral Ditch
West Lateral Ditch
Jemez Springs Acequia
West-side Ditch
West Ditch
South Upper Ditch
Canyon Community Ditch
Lower Canyon Ditch
Ponderosa Ditch
San Ysidro Community Ditch
Association
______
Prepared Statement of Larry Carver, President of the Association of
Community Ditches of the Rio San Jose
Chairman Brian Schatz and Committee members, I am Larry Carver,
president of the Association of Community Ditches of the Rio San Jose
(``Association''), representing the nine acequias and community ditches
in Cibola County, New Mexico. I appreciate the opportunity to submit
this statement, on behalf of the Association, in support of the Pueblos
of Acoma and Laguna Water Rights Settlement Act of 2022, Senate Bill
4898.
After an intensive period of settlement negotiations extending over
approximately eight years, the Pueblos of Acoma and Laguna, the State
of New Mexico, the City of Grants, the Village of Milan, and the
Association and its member acequias and community ditches have reached
a Settlement Agreement resolving the water rights claims of the two
Pueblos in the Rio San Jose Stream System. These claims have been the
subject of intense litigation among the settlement parties since the
1980s.
Each of our member acequias and community ditches is organized or
recognized under the laws of the State of New Mexico as political
subdivisions of the State. These members are respectively Seboyeta
Community Irrigation Association, La Acequia Madre del Ojo del Gallo,
Moquino Water Users Association II, Murray Acres Irrigation
Association, San Mateo Irrigation Association, Cubero Acequia
Association, Cebolletita Acequia Association, Community Ditch of San
Jose de la Cienega, and Bluewater Toltec Irrigation District. These
nine Acequias comprise all the non-Indian irrigation in the Rio San
Jose Basin and also represent the second most senior water rights in
the Basin. Some of these member Acequias have been irrigating for over
two hundred years. Only the Pueblos have some priorities which are more
senior to those of the Acequias and their members. The Association and
its member Acequias ask the Committee to support the Settlement Act,
which would authorize, ratify and confirm the Settlement Agreement
which has resulted from all our hard work.
The Association supports passage of S. 4898 authorizing the
Settlement Agreement because it contains provisions designed to protect
the ability of the Acequia members to continue to irrigate their lands
and preserve their customs for many decades to come. First, the Pueblos
have agreed, as a condition to settlement of their water rights claims,
to give up their right to make a priority call against junior non-
Pueblo water users. A Pueblo priority call against Acequia irrigation
uses would lead to lengthy and costly litigation and inevitable rancor
among Pueblo and non-Pueblo neighbors, without contributing at all to
improving water supplies or water distribution system efficiency for
any water users. The Acequias would rather devote their time, energy
and resources to addressing the water shortage situation. Second, the
Settlement Agreement will also protect the Acequias' water supplies and
historic uses from potential impacts from any future Pueblo water
projects and changes in their water uses. The Pueblos will also
implement administrative procedures applicable to their water rights
that will enable the Acequias to protect their water sources and uses
from impairment caused by the Pueblos' future development of their
water rights. Pueblo administrative actions will be reviewable by
appeal to the New Mexico District Court for the 13th Judicial District
which will retain jurisdiction to interpret and enforce the Settlement
Agreement and to review Pueblo administrative decisions, for which
limited purposes the Pueblos have agreed to waive their sovereign
immunity. Finally, the Settlement Agreement provides for $12 million in
State funding to the Acequias for water supply and infrastructure
improvements, costs related to evaluation of Pueblo projects and other
water related uses. The Acequias have suffered from the same reduction
in water supplies as the Pueblos and the non-Pueblo irrigation is now
drastically reduced from what it was historically. Without improvements
in the Acequias' water supplies and without the ability to protect
their water sources from developments by the Pueblos and other water
users, the future for the Acequias is bleak. The $12 million in State
funding and the administrative and judicial protections in the
Settlement Agreement and S. 4898, along with other features of the
Settlement Agreement, will help improved water supplies for the
Acequias and their members.
Mr. Chairman and Committee members, the Association of Community
Ditches of the Rio San Jose and its member acequias and community
ditches ask you to suppott S. 4898. We believe this Settlement
Agreement is the best way of resolving the multi-decade long litigation
over the water rights claims of the Pueblos in the Rio San Jose Basin.
It will allow the stakeholders to move beyond the litigation which has
bogged them down up to now and begin to develop efficiencies in their
water supplies and water uses that will be necessary to survive climate
change and future drought.
The Acequias appreciate the opportunity to submit these comments
and I thank you for considering my Statement.
______
City of Rio Rancho
October 25, 2022
Dear Senator Lujan:
On behalf of the City of Rio Rancho, I am asking for your support
of S. 4896--the Pueblos of Jemez and Zia Water Rights Settlement Act of
2022 (``Settlement Act''). The City of Rio Rancho is a party to the
Settlement Agreement which forms the basis for the federal legislation
embodied in S. 4896. As a participant in the many years of settlement
negotiations leading to the Settlement Agreement and a party to the
Agreement, the City fully supports the settlement and the legislation
necessary to effectuate this important Agreement. The Governing Body
approved the Settlement Agreement on June 9, 2022. I attach the City
Resolution related to that approval.
As you know, the Settlement Act has been referred to the Senate
Indian Affairs Committee. The City requests your assistance and support
in enacting this important legislation. The City holds significant
rights to water in the Rio Grande Basin and the Jemez River Basin for
purposes of providing the essential water supply for all the municipal
needs of the City's residents, commercial and industrial users. At
present the City serves approximately 35,000 individual accounts which
represents over 95,000 individual users. In addition to residential
households, the City serves approximately 1,100 commercial and
industrial users which include Intel, UNM Sandoval Regional Medical
Center, Presbyterian Rust Medical Center, and Hewlett-Packard.
The City's rights are to groundwater with attendant required rights
to surface supply for the purpose of ``offsetting'' the City's effects
on surface supply related to its groundwater pumping. The City's
groundwater use necessary to supply its municipal needs has effects in
the Jemez River Basin which it fully offsets. But supplies in the Jemez
Basin are very limited and the development of future supply,
administration of existing rights, and the unquantified water claims of
the City's Pueblo neighbors Jemez and Zia and potential effects on the
City, has been an issue of longstanding interest and concern to the
City. The City has recognized for some time that, where possible,
addressing rights to water is best accomplished through collaborative
agreement and problem solving. The City has found that recognizing
mutual rights to a shared water resource and finding common ground in
agreement to address existing and future uses is the preferred most
effective tool to solve the complex issues relating to the allocation
and administration of our scarce water resources.
After many years of litigation and then negotiation, the critical
water interests in the Jemez River Basin (the Pueblos of Jemez and Zia,
the Jemez River Basin Coalition of Acequias, the City of Rio Rancho,
the State of New Mexico, and the United States) have been able to craft
a successful agreement that addresses quantification of the claims of
the Pueblos, protects existing water uses, addresses future water
development needs and provides certainty for water use in and to the
Jemez River Basin into the future. Significantly for the City, the
Settlement Agreement provides for protections of the City's water
rights and use; provides the City the ability to lease Pueblo water
rights to address potential additional needs of the City in the future;
and provides important certainty regarding the development and effects
of existing and future water use with regard to both City and Pueblo
water rights.
The Settlement Agreement and Settlement Act represent the
culmination of a significant comprehensive and collaborative effort to
address the complex issues relating to use of the limited, shared water
resources of the Jemez River Basin. The City of Rio Rancho requests
your support for the Settlement Act necessary to implement the
Settlement Agreement. Please do not hesitate to contact me should you
or your staff have any questions regarding the City's support for and
interests in the Settlement Act.
Sincerely,
Greggory D. Hull, Mayor of Rio Rancho
______
City of Rio Rancho
October 17, 2022
Dear Senator Lujan:
I am the Governor for the Pueblo of Jemez and I write this letter
in support of S. 4896, a bill to approve the settlement of water rights
claims of the Pueblos of Jemez and Zia in the State of New Mexico,
introduced on September 20, 2022 and referred to the Senate Committee
oflndian Affairs. The successful conclusion of many years of settlement
negotiations to finally resolve 39 years of litigation in United States
v. Abousleman, et al. is a historic milestone for New Mexico, for our
Pueblo and for waters generally in the Jemez River Basin. The
Settlement Agreement provides significant benefits to my Pueblo and
non-Pueblo water users, and it recognizes the unique historic, social
and cultural practices of both Pueblo and non-Pueblo water users and
the unique hydrologic characteristics of the Jemez Basin. Importantly,
it establishes the rights of my Pueblo to use our water for our own
purposes and provides for quantification of water rights, reliability
of supply, and protection of surface and groundwater in the basin for
future generations while allowing all parties to fully exercise their
water rights. It also provides economic development for my Pueblo now
and into the future.
My Pueblo representatives and the Parties to this settlement have
engaged in many years of negotiations, and the Settlement Agreement is
the product of their numerous hours of collaborative hard work and
effort. Our legal counsel, Tribal Water Team and technical expert have
kept my Tribal Council informed over many years and my Tribal Council
was pleased and relieved when settlement was reached, as these issues
have gone much too long unresolved. A Tribal Council Resolution was
unanimously passed by my Tribal Council approving the Settlement
Agreement.
As you know, it is only through the passage of federal implementing
legislation that the significant benefits of this historic water
settlement can become a reality. For this reason, the Pueblo of Jemez
asks for your support and assistance in ensuring that S. 4896 receives
a hearing and is reported out of the Senate Indian Affairs Committee,
and your additional support and assistance to secure full passage of
this legislation in the 11 7th Congress. Your support and leadership
would be very meaningful to our people, and we believe is in the best
interest of the State of New Mexico. Should you need any additional
information, please let us know. Thank you for your assistance and we
look forward to working with you and your staff in this very crucial
piece of legislation.
Respectfully,
Raymond Loretto, DVM, Governor
______
San Ysidro Community Ditch Association
October 20, 2022
Dear Senator Lujan:
I am pleased to submit this letter on behalf of the San Ysidro
Community Ditch Association. We are the largest member of the Jemez
River Basin Coalition of Acequias. Our Association respectfully seeks
your support for S. 4896, which will approve settlement of water rights
claims of the Pueblos of Jemez and Zia and fund and provide critical
benefits to all water users of the Rio Jemez stream system.
At our meeting on May 11, 2022, our membership resoundingly
approved the Settlement Agreement. Our Commission signed the Settlement
Agreement, and we firmly believe S. 4896 will prove to be the most
important piece of legislation protecting the water resources and
traditional practices in our part of New Mexico. With your help in
enacting this legislation, we will have the historical opportunity to
assure a sufficient water supply in the Jemez Valley for many
generations to come.
The adjudication court has decreed that our acequia has been
irrigating 500 acres since 1786. We are one of the most senior water
users in the valley. Yet because of inadequate and declining flows of
the Rio Jemez, neither we nor the two Pueblos receive sufficient
supply. Like the other Jemez acequias, we especially lack good supply
during the summer, when irrigation water is most needed, because of the
current 1996 rotation agreement. It has become very difficult to grow
crops within San Ysidro because of lack of supply.
Under the settlement, our situation will markedly improve. A key
feature of the settlement is the Augmentation Project that will serve
San Ysidro and the two Pueblos. By constructing a water augmentation
system, consisting of supplemental irrigation wells and ditch works,
the three beneficiaries will have enough water for a full supply in
most year, and a much-enhanced supply even in dry years. San Ysidro
will work hand in hand with the Pueblos to manage the system and make
sure it remains operable over time and functions effectively to provide
water to all three beneficiaries. The other acequias will also benefit
because they will no longer be curtailed to get water downstream. This
is a huge benefit for all concerned.
The legislation will authorize federal funds to the Pueblos for
costs associated with the Project and other water and wastewater
infrastructure improvements. The State will fund San Ysidro's cost
share of the Project and will fund ditch improvements for the other
acequia members of the Coalition.
Please let us know if we may provide any additional information.
Along with the Coalition, we will be submitting testimony to the Senate
Indian Affairs Committee.
Truly Yours,
Gilbert Montoya, Commission President
______
STATE OF NEW MEXICO OFFICE OF THE STATE ENGINEER
October 28, 2022
Dear Senator Lujan:
The State of New Mexico appreciates the opportunity to convey the
State's full support of Senate Bill 4896, Pueblos of Jemez and Zia
Water Rights Settlement Act of 2022. This Bill seeks to authorize,
ratify and confirm the settlement agreement among the State, the
Pueblos of Jemez and Zia, the United States as trustee, the City of Rio
Rancho, the Jemez River Basin Water Users Coalition, of which the San
Ysidro Community Ditch Association is one of the eleven member
coalition of acequias.
The settlement agreement will resolve the water rights claims of
the Pueblos of Jemez and Zia and provides funding for much needed water
supply infrastructure to the Pueblos and non-Pueblo water users in the
Jemez River Basin. These claims arise from the trespass suit filed by
the United States on behalf of the Pueblos in 1983 and proceeded in the
United States District Court, District of New Mexico as a general
stream adjudication of the water rights of all users in the Jemez River
Basin (United States of America, et al. v. Abousleman, et al., Civil
No. 83-cv-01041 (KR)). The water rights of non-Pueblo claimants have
been adjudicated, and the Pueblos have the only claims remaining in the
Basin.
The settlement represents the culmination of 40 years of litigation
and subsequent negotiations and offers a historic opportunity to
resolve long-standing concerns over the use of scarce water supplies in
the Jemez Valley. The settling parties represent a majority of water
users in the basin. Further, all major stakeholders within the stream
system have either participated, or have been afforded the opportunity
to participate, in both the initial litigation and subsequent
settlement negotiations.
Over the last 20 or more years, there have been public meetings,
site visits and other forms of outreach. The State is confident that
water users within the stream system are well aware of the ongoing
efforts to resolve and quantify the water claims of the Pueblos, while
also protecting nonIndian water uses.
The settlement prevents conflict over surface water by providing
federal funding to the Pueblos and state funding to the San Ysidro
Community Ditch to use groundwater to augment their surface water
supplies. This mutual benefit project provides for alternative
administration between the two Pueblos and non-Pueblo water users and
is intended to supplement surface water supply during periods of low
flow. This ground water augmentation will benefit all users, including
10 upstream acequias who will no longer be subject to curtailment from
Pueblo priority calls. By providing a critical buffer against predicted
climate change impacts on surface supplies, the augmentation of surface
water and other proposed settlement projects will help preserve ancient
cultural and agricultural practices and strengthen the relationship
between Pueblo and non-Pueblo communities in the Jemez River Basin.
Federal funding in the amount of $490 million is contemplated for
water and wastewater infrastructure improvements, watershed protection,
water-related Pueblo community welfare and economic development, and
costs relating to implementation of the settlement. The State will fund
the San Ysidro Community Ditch Association's capital and operating
expenses relating to the augmentation project in the amount of $3.4
million, and approximately $16 million for Jemez River Basin Water
Users Coalition acequia ditch improvements. Finally, if the State
Engineer finds it necessary to appoint a Water Master to manage water
rights in the Jemez Basin, the State will fully fund this position and
other necessary staff to fulfill the State's commitment to settlement
implementation.
The Pueblos have agreed to give up their right to request a
priority call on junior non-Pueblo water rights holders, which provides
security to all water rights holders. The settlement also provides for
the establishment of a water master district to monitor and protect
water resources in the Jemez River Basin for future generations while
allowing all parties to fully exercise their water rights.
Sincerely,
Mike A. Hamman, P.E., New Mexico State Engineer
______
PUEBLO OF ZIA
October 18, 2022
Dear Senator Lujan:
For close to 40 years now water users in the Jemez Basin have been
working towards a comprehensive determination of their respective water
rights. While for approximately the first 30 years the focus was on
litigation, with a substantial focus on the adjudication of non-Indian
rights, over the last ten plus years the parties have focused on
negotiating a settlement of the Pueblos' water rights. This summer the
parties finally reached a comprehensive settlement of the water rights
of Zia and Jemez Pueblos, including provisions on the administration of
their rights and the rights of the non-Indian parties. In addition to
the two Pueblos, parties to the settlement agreement include the State
of New Mexico (the Governor, Attorney General and State Engineer are
all signatories), Coalitions of basin acequias, and the City of Rio
Rancho. To our knowledge, no one in the basin opposes the settlement.
For Zia's part, our Tribal Council has unanimously approved this
settlement and the ratifying legislation, and passage of the ratifying
legislation is now Zia's number one priority. I enclose a copy of the
Tribal Council resolution for your reference.
We respectfully urge you to support, and ideally co-sponsor, S.
4896.
Sincerely,
Gabriel Galvan, Governor
______
PUEBLO OF ACOMA
October 24, 2022
Dear Senator Lujan:
I write to you today to express the Pueblo of Acoma's strong
support for S. 4898, the settlement of water rights claims of the
Pueblos of Acoma and Laguna in the Rio San Jose Basin. This stream
system has provided the only source of water for the Pueblo of Acoma
for centuries and well before the arrival of the first Europeans to
this region. You may be aware that Acoma is the oldest continuously
inhabited community in the United States, if not North America. This
legislation is the culmination of a decades long process to address
critical water shortages for all water users in the basin, an area
that's one of the most water-short places in the State of New Mexico.
The Pueblo believes it will not only be able to survive, but also
thrive along with its neighbors with the passage of this legislation.
The present state of the Rio San Jose' Stream System is one of
extreme scarcity, much ofit caused by the actions of the federal
government, contested uses over the decades, and the result of climate
change. The Pueblo's oral and written history indicates that the stream
system met all of the Pueblo's water needs and created a sustainable
ecosystem until the arrival of the United States in the region and the
establishment of Fort Wingate in the l 860's. The military post was
located upstream from the Pueblo and as the years progressed the
Pueblo's water supply steadily decreased. In the 1920s an irrigation
district was formed, again upstream, with far greater acreage than
available water to irrigate. That led to groundwater mining as farmers
drilled supplemental wells to irrigate their lands. Beginning in the
1950s, the discovery of uranium in the basin resulted in a major
federal effort to create and fund a uranium mining industry. Mine
dewatering and uranium processing depleted remaining aquifers and over
time resulted in significant contamination of the dwindling water
supply. This was exacerbated in the 1980s when operators of an
electrical generating station transferred irrigation water rights used
only during the agricultural season to a full time, totally consumptive
industrial use. Now, the Pueblo suffers water shortages daily for a
wide variety of uses--domestic, commercial, municipal, agricultural,
livestock and cultural uses.
The primary sources of surface water in the Rio San Jose' are now
very few. Spring flow discharged from the San Andres Glorieta aquifer
and other aquifers that form Mt. Taylor have been mined so that most
have gone dry. Only one spring, known as Horace Springs, produces a
dwindling trickle that slowly flows across the Pueblo. Horace Springs
is on the western boundary of the Acoma Pueblo Grant. In 1940 the
decreased flow was 10 cubic feet per second, about twothirds the pre-
U.S. flow. Now, some 80 years later, the flow from the spring has
dropped dramatically to as low as 1.8 cubic feet per second and rarely
reaches 3 cubic feet per second. For the Ojo del Gallo parciantes and
acequias south of the town of Grants, no water has flowed from Ojo del
Gallo spring for decades. Also, because of climate change and long-term
drought, snow melt from the Zuni and San Mateo Mountains is now
significantly reduced. The drop in snow melt has also contributed to
reduced water levels in streams and aquifers.
In 1983 the United States initiated a lawsuit against non-Indian
users in the basin to quantify the water rights of the Pueblos and seek
damages for trespass to those water rights over the years. That led to
the filing of a stream-wide adjudication, State ex rel. State Engineer
v. Kerr-McGee, et al, that same year. After several years of litigation
with no end in sight, but with water levels continuing to decline, the
Pueblo of Acoma initiated negotiations with the State of New Mexico in
2013 and extended the negotiations to all parties to the adjudication.
Over the years the Pueblos met with parciantes of the acequias that
rely on the river system, the municipalities in the basin, and
industrial users whose rights are derived from the Bluewater-Toltec
Irrigation District. Attorneys for the Pueblos of Acoma and Laguna, the
nine acequias including the irrigation district, and the two
municipalities, with participation by the United States, have been
negotiating in earnest since 2016 when the Court adjudication was
stayed, which allowed for negotiations to proceed.
This settlement is a major and collaborative achievement. The
parties involved were determined to produce a regime for water use that
would meet the needs of all users in ways that could not have been
accomplished solely through adjudication. Early on, the negotiating
parties determined that water use for domestic and livestock wells and
ponds would not be affected by the settlement but would be quantified
within the adjudication as it progressed under New Mexico law. Rather
than continued litigation to limit junior users to meet the Pueblos'
senior priority water rights, all of which would take significant time
and financial resources, the parties have accepted limits on their
water use. The limits are in line with water that can be reliably
provided to meet the needs of the Pueblos through replacement water
supplies that come from the last remaining aquifer in the basin, which
is not presently the water source for any user. The proposed water to
Acoma will come from a replacement water supply that is limited to an
agreed quantity based only on past and present irrigation. The Pueblo
is foregoing other potential rights under federal law in exchange for a
system that will actually provide wet water to the Pueblo, not just
paper rights.
With this legislation, Acoma and its neighbors will have the
necessary legal right to water and tools to insure a reliable wet water
supply for present and future generations as the Pueblo and the
immediate region face a future where water supply is far from certain.
What the legislation will do is provide a level of certainty that
allows for water planning over the long term to meet community and
regional needs.
Acoma urges you to support this region-wide collaborative effort to
ensure a sustainable water future.
Sincerely,
Randall Vicente, Governor
______
BLUEWATER TOLTEC IRRIGATION DISTRICT
November 10, 2022
Dear Senator Lujan:
We are writing on behalf of the Bluewater Toltec Irrigation
District, a community ditch association in the Rio San Jose Basin, to
ask your suppo1i for Senate Bill S. 4898 introduced on September 20,
2022. This Bill gives Congressional approval of the Settlement
Agreement for determination of the water rights of the Pueblos of Acoma
and Laguna. This settlement was reached after many years and hundreds
of hours of intense negotiations among the principal water right
claimants in the Rio San Jose Basin in New Mexico, including this
Association, and the other eight Acequias and Community Ditches located
in the Rio San Jose Basin. We believe the Settlement Agreement contains
many provisions beneficial to our Acequias and ditch associations and
to this community as a whole. It brings this 40 year litigation over
the Pueblos' water rights to a close while containing many protections
for our own irrigation rights from the Pueblos' water uses. Of prime
impo1iance, the Pueblos will not be able to make priority calls against
our water rights, and we will have the ability to evaluate and protest
new Pueblo water projects and changes in their water usage. Second, the
State adjudication Court will retain jurisdiction to enforce and
interpret the Settlement Agreement and appeals from Pueblo
administrative decisions as to their water rights. The pmiies will be
seeking State legislation to authorize such appeals to the State
adjudication Court. In addition, $12 Million in State funding will be
provided for development of water projects to improve and conserve our
water supplies and evaluate and protest Pueblo water projects that
might impact Acequia water supplies.
Because of the many benefits it provides, our Association approved
the Settlement Agreement on August 24, 2022 by vote of our board
members meeting in quomm after public notice given in accordance with
our Bylaws and the New Mexico Open Meetings Act. We are providing you a
copy of our Resolution approving the Settlement Agreement with this
letter. We fully suppo1i Senate Bill S. 4898 and urge you to do so. We
would welcome the opportunity to discuss this further with you and your
staffers and answer ooy questions you may have.
Thank you for your representation of our interests and your efforts
on our behalf.
Sincerely,
Rex Robinson, President
______
City of Grants
November 8, 2022
Dear Senator Lujan:
The City of Grants (''City'') strongly supports S. 4898 (the
``Bill'') that quantifies and settles the water rights of the Pueblos
of Acoma and Laguna and urges you to support the Bill. In a unanimous
vote on May 6, the City Council approved the Local Settlement Agreement
(``Settlement''). The Settlement would end four decades of litigation
and provide funding for infrastructure to provide wet water to the
Pueblos and significant benefits to the City, the Village of Milan and
the nine Acequias in the area. In addition to the economic development
fostered by the funding, the City would conserve water and upgrade its
own water infrastructure with t he $12.5 million included in the
Settlement to be provided from the State of New Mexico. The funding
would pay for the Joint Grants-Milan Project for Water Re-Use, Water
Conservation and Augmentation of the Rio San Jose t hat will provide
additional wet water to the system.
The City Council did not make this decision lightly-it has invested
significant time and resources over t he past several years to build
trust with t he other parties and work together to solve problems in
the Rio San Jose Stream System. The City has participated in extensive
meditation sessions over at least the past five years, working through
a painstaking process to draft the Bill and the Settlement, which has
been signed by all the parties.
The Settlement and the Bill together protect the water rights of
the City and others by allowing continued use of water rights without
the threat of priority calls by the Pueblos. The Pueblos hold time
immemorial priority dates and could create chaos if they chose to
enforce their priorit ies. Further, the Settlement protects non-Pueblo
water users for the future because the Pueblos agreed to prohibit
impairment in any water rights permits they issue. The City and Pueblos
also promise to take steps that will keep communications open and
facilitate cooperate on water infrastructure in the future.
We urge you, therefore, to support S. 4898 for the benefit of
Grants, everyone in the Rio San Jose Basin, and New Mexico. We stand
ready to answer any questions you have on this important Settlement and
the Bill.
Very truly yours,
Erik Garcia, Mayor; Donald Jaramillo, City Manager
______
Community Ditch of San Jose de la Cienega
November 3, 2022
Dear Senator Lujan:
We are writing on behalf of the Community Ditch of San Jose de la
Cienega to ask your support for Senate Bill S. 4898 introduced on
September 20, 2022. This Bill gives Congressional approval of the
Settlement Agreement for determination of the water rights of the
Pueblos of Acoma and Laguna. The settlement was reached after many
years and hundreds of hours of intense negotiations among the principal
water right claimants in the Rio San Jose Basin in New Mexico,
including this Acequia and the other eight Acequias and Community
Ditches located in the Rio San Jose Basin. We believe the Settlement
Agreement contains many provisions beneficial to our Acequias and to
this community as a whole. It brings this litigation over the extent of
the Pueblos' water rights, which has gone on for 40 years, to a close
while containing many protections for our own irrigation rights from
Pueblo water uses. The Pueblos cannot make priority calls against our
water rights and we will have the ability to evaluate and protest new
Pueblo water projects and changes in water usage. Plus, we will receive
State funding for development of water projects to improve and conserve
our water supplies.
Because of the many benefits it provides, our Acequia approved the
Settlement Agreement on July 19, 2022 by vote of the members meeting in
quorum after public notice given in accordance with our Bylaws and the
New Mexico Open Meetings Act. We fully support Senate Bill S. 4898 and
urge you to do so. We would welcome the opportunity to discuss this
further with you and your staffers and answer any questions you may
have.
Sincerely,
Harding Polk, Chairman
______
Community Ditches of Rio San Jose Regional Association
November 3, 2022
Dear Senator Lujan:
We are writing on behalf of the The Community Ditches of Rio San
Jose Regional Association, this organization represents all nine
Acequia and Irrigation Districts in the basin. We are requesting your
support for Senate Bill S. 4898 introduced on September 20, 2022. This
Bill gives Congressional approval of the Settlement Agreement for
determination of the water rights of the Pueblos of Acoma and Laguna.
The settlement was reached after many years and hundreds of hours of
intense negotiations among the principal water right claimants in the
Rio San Jose Basin in New Mexico, including all nine Acequias and
Community Ditches located in the Rio San Jose Basin. The association
has worked tirelessly with all these groups to organize meetings to
insure complete understanding of the settlement itself. Our legal team
has attended and explained all the pros and cons to the settlement. We
believe the Settlement Agreement contains many provisions beneficial to
our Acequias and to this community as a whole. It brings this
litigation over the extent of the Pueblos' water rights, which has gone
on for 40 years, to a close while containing many protections for our
own irrigation rights from Pueblo water uses. The Pueblos cannot make
priority calls against our water rights, and we will have the ability
to evaluate and protest new Pueblo water projects and changes in water
usage. Plus, we will receive State funding for development of water
projects to improve and conserve our water supplies.
Because of the many benefits it provides, The Regional Association
strongly approved of the settlement and encouraged all Association
Commissioners to work with their Parciantes/memberships through
meetings, emails, and personal phone calls to fully explain and address
any questions and/or concerns they may have had. The Acequia groups
approved the Settlement Agreement on various dates, by vote of the
members meeting in quorum after public notice given in accordance with
their Bylaws and the New Mexico Open Meetings Act. We fully support
Senate Bill S. 4898 and urge you to do so. We would welcome the
opportunity to discuss this further with you and your staffers and
answer any questions you may have.
Sincerely,
Leon/Beverly Tafoya, Community Liaison
______
Cubero Acequia Association
November 7, 2022
Dear Senator Lujan:
We are writing on behalf of the Cubero Acequia Association, an
acequia in the Rio San Jose Basin, to ask your support for Senate Bill
S. 4898 introduced on September 20, 2022. This Bill gives Congressional
approval of the Settlement Agreement for determination of the water
rights of the Pueblos of Acoma and Laguna. The settlement was reached
after many years and hundreds of hours of intense negotiations among
the principal water right claimants in the Rio San Jose Basin in New
Mexico, including this Acequia and the other eight Acequias and
Community Ditches located in the Rio San Jose Basin. The association
has worked tirelessly with all these groups to organize meetings to
insure complete understanding of the settlement itself. Our legal team
has attended and explained all the pros and cons to the settlement. We
believe the Settlement Agreement contains many provisions beneficial to
our Acequia and to this community as a whole. It brings this 40 year
litigation over the Pueblos' water rights to a close while containing
many protections for our own irrigation rights from Pueblo water uses.
Of prime importance, the Pueblos will not be able to make priority
calls against our water rights, and we will have the ability to
evaluate and protest new Pueblo water projects and changes in water
usage. Second, the State adjudication Court will retain jurisdiction to
enforce and interpret the Settlement Agreement and appeals from Pueblo
administrative decisions as to their water rights. The parties will be
seeking State legislation to authorize such appeals to the State
adjudication Court. In addition, $12 Million in State funding will be
provided for development of water projects to improve and conserve our
water supplies and evaluate and protest Pueblo water projects that
might impact Acequia water supplies.
Because of the many benefits it provides, our Acequia approved the
Settlement Agreement on Saturday August 13, 2022 by vote of our
parciantes meeting in quorum after public notice given in accordance
with our Bylaws and the New Mexico Open Meetings Act. We fully support
Senate Bill S. 4898 and urge you to do so. We would welcome the
opportunity to discuss this further with you and your staffers and
answer any questions you may have.
Thank you for your representation of our interests and your efforts
on our behalf.
Sincerely,
Peter Salazar, Chair
______
La Acequia Madre del Ojo del Gallo
November 7, 2022
Dear Senator Lujan:
We are writing on behalf of the La Acequia Madre del Ojo del Gallo,
an acequia in the Rio San Jose Basin, to ask your support for Senate
Bill S. 4898 introduced on September 20, 2022. This Bill gives
Congressional approval of the Settlement Agreement for determination of
the water rights of the Pueblos of Acoma and Laguna. The settlement was
reached after many years and hundreds of hours of intense negotiations
among the principal water right claimants in the Rio San Jose Basin in
New Mexico, including this Acequia and the other eight Acequias and
Community Ditches located in the Rio San Jose Basin. The association
has worked tirelessly with all these groups to organize meetings to
insure complete understanding of the settlement itself. Our legal team
has attended and explained all the pros and cons to the settlement. We
believe the Settlement Agreement contains many provisions beneficial to
our Acequia and to this community as a whole. It brings this 40 year
litigation over the Pueblos' water rights to a close while containing
many protections for our own irrigation rights from Pueblo water uses.
Of prime importance, the Pueblos will not be able to make priority
calls against our water rights, and we will have the ability to
evaluate and protest new Pueblo water projects and changes in water
usage. Second, the State adjudication Court will retain jurisdiction to
enforce and interpret the Settlement Agreement and appeals from Pueblo
administrative decisions as to their water rights. The parties will be
seeking State legislation to authorize such appeals to the State
adjudication Court. In addition, $12 Million in State funding will be
provided for development of water projects to improve and conserve our
water supplies and evaluate and protest Pueblo water projects that
might impact Acequia water supplies.
Because of the many benefits it provides, our Acequia approved the
Settlement Agreement on Saturday August 25, 2022 by vote of our
parciantes meeting in quorum after public notice given in accordance
with our Bylaws and the New Mexico Open Meetings Act. We fully support
Senate Bill S. 4898 and urge you to do so. We would welcome the
opportunity to discuss this further with you and your staffers and
answer any questions you may have.
Thank you for your representation of our interests and your efforts
on our behalf.
Sincerely,
Randall Chavez, President
______
PUEBLO OF LAGUNA
October 19, 2022
Dear Senator Lujan:
I write to you on behalf of the Pueblo of Laguna to wholeheartedly
support S. 4898, a bill to approve the settlement of water rights
claims of the Pueblos of Acoma and Laguna in the Rio San Jose Stream
System in the State of New Mexico, and for other purposes.
S. 4898 will resolve water supply problems more than a century in
the making. It will support efforts to retain traditional agriculture,
which the Pueblo of Laguna relied upon since time immemorial.
Our Pueblo ancestors were farmers, dam builders and water
engineers. They designed and built vast systems of irrigation ditches
and massive reservoirs before the first Spanish contact with Pueblo
people.
The Laguna people maintained and rebuilt our dams and ditches for
centuries, continuing throughout the Spanish and Mexican periods and
into the American period. Then, over a century ago, the United States
Indian Irrigation Service began replacing our irrigation systems with
concrete structures but neglected to maintain or rebuild the concrete
structures they imposed on us.
We could not maintain these replacement structures using our
traditional methods and materials. This federal neglect resulted in a
degraded irrigation system that is no longer sufficient to provide
water when it is available.
During this same time, junior upstream users began taking the water
until the Rio San Jose barely maintained a flow. Then they began
pumping the groundwater, depleting the groundwater to the point that,
even if all current junior water users ceased using water in the Rio
San Jose basin, the system would not recover to provide historical flow
levels in the Rio San Jose in the Pueblos reach for many decades, if
ever.
S. 4898 will provide mechanisms for the cooperative management,
administration and protection of this sacred resource and funding for
alternative water supplies for the Pueblos to ensure the health, safety
and economic future for the people of Laguna and Acoma Pueblos. It will
also provide water security to surrounding communities for decades to
come.
As a fund-based settlement, the bill provides each Pueblo with the
ability to determine the best method for providing water to its people,
allowing the Pueblos to fully realize their sovereign right to self-
determination.
This settlement agreement, and the historic legislation that
implements it, would not have been possible without the hard work and
compromise of major stakeholders in the Rio San Jose basin, all of whom
support both the settlement and this legislation. If you have any
question about our position on S. 4898, please contact us.
Sincerely,
Martin Kowemy, Jr., Governor
______
Murray Acres Irrigation Association
November 7, 2022
Dear Senator Lujan:
We are writing on behalf of the Murray Acres Irrigation
Association, a community ditch association in the Rio San Jose Basin,
to ask your support for Senate Bill S. 4898 introduced on September 20,
2022. This Bill gives Congressional approval of the Settlement
Agreement for determination of the water rights of the Pueblos of Acoma
and Laguna. The settlement was reached after many years and hundreds of
hours of intense negotiations among the principal water right claimants
in the Rio San Jose Basin in New Mexico, including this Association,
and the other eight Acequias and and Community Ditches located in the
Rio San Jose Basin. The association has worked tirelessly with all
these groups to organize meetings to insure complete understanding of
the settlement itself. Our legal team has attended and explained all
the pros and cons to the settlement. We believe the Settlement
Agreement contains many provisions beneficial to our Acequia and to
this community as a whole. It brings this 40 year litigation over the
Pueblos' water rights to a close while containing many protections for
our own irrigation rights from Pueblo water uses. Of prime importance,
the Pueblos will not be able to make priority calls against our water
rights, and we will have the ability to evaluate and protest new Pueblo
water projects and changes in water usage. Second, the State
adjudication Court will retain jurisdiction to enforce and interpret
the Settlement Agreement and appeals from Pueblo administrative
decisions as to their water rights. The parties will be seeking State
legislation to authorize such appeals to the State adjudication Court.
In addition, $12 Million in State funding will be provided for
development of water projects to improve and conserve our water
supplies and evaluate and protest Pueblo water projects that might
impact Acequia water supplies.
Because of the many benefits it provides, our Acequia approved the
Settlement Agreement on July 5, 2022 by vote of our parciantes meeting
in quorum after public notice given in accordance with our Bylaws and
the New Mexico Open Meetings Act. We fully support Senate Bill S. 4898
and urge you to do so. We would welcome the opportunity to discuss this
further with you and your staffers and answer any questions you may
have.
Thank you for your representation of our interests and your efforts
on our behalf.
Sincerely,
Larry Carver, President
______
SAN MATEO ACEQUIA ASSOCIATION
October 21, 2022
Dear Senator Lujan:
We are writing on behalf of the San Mateo Irrigation Association,
an acequia in the Rio San Jose Basin, to ask your support for Senate
Bill S. 4898 introduced on September 20, 2022. This Bill gives
Congressional approval of the Settlement Agreement for determination of
the water rights of the Pueblos of Acoma and Laguna. The settlement was
reached after many years and hundreds of hours of intense negotiations
among the principal water right claimants in the Rio San Jose Basin in
New Mexico, including this Acequia, and the other eight Acequias and
and Community Ditches located in the Rio San Jose Basin. The
association has worked tirelessly with all these groups to organize
meetings to insure complete understanding of the settlement itself. Our
legal team has attended and explained all the pros and cons to the
settlement. We believe the Settlement Agreement contains many
provisions beneficial to our Acequia and to this community as a whole.
It brings this 40 year litigation over the Pueblos' water rights to a
close while containing many protections for our own irrigation rights
from Pueblo water uses. Of prime importance, the Pueblos will not be
able to make priority calls against our water rights, and we will have
the ability to evaluate and protest new Pueblo water projects and
changes in water usage. Second, the State adjudication Court will
retain jurisdiction to enforce and interpret the Settlement Agreement
and appeals from Pueblo administrative decisions as to their water
rights. The parties will be seeking State legislation to authorize such
appeals to the State adjudication Court. In addition, $12 Million in
State funding will be provided for development of water projects to
improve and conserve our water supplies and evaluate and protest Pueblo
water projects that might impact Acequia water supplies.
Because of the many benefits it provides, our Acequia approved the
Settlement Agreement on July 19, 2022 by vote of our parciantes meeting
in quorum after public notice given in accordance with our Bylaws and
the New Mexico Open Meetings Act. We fully support Senate Bill S. 4898
and urge you to do so. We would welcome the opportunity to discuss this
further with you and your staffers and answer any questions you may
have.
Thank you for your representation of our interests and your efforts
on our behalf.
Sincerely,
Richard Urenda, President
______
Seboyeta Community Irrigation Association
November 3, 2022
Dear Senator Lujan:
We are writing on behalf of the Seboyeta Community Irrigation
Association, an acequia in the Rio San Jose Basin, to ask your support
for Senate Bill S. 4898 introduced on September 20, 2022. This Bill
gives Congressional approval of the Settlement Agreement for
determination of the water rights of the Pueblos of Acoma and Laguna.
The settlement was reached after many years and hundreds of hours of
intense negotiations among the principal water right claimants in the
Rio San Jose Basin in New Mexico, including this Acequia, and the other
eight Acequias and and Community Ditches located in the Rio San Jose
Basin. The association has worked tirelessly with all these groups to
organize meetings to insure complete understanding of the settlement
itself. Our legal team has attended and explained all the pros and cons
to the settlement. We believe the Settlement Agreement contains many
provisions beneficial to our Acequia and to this community as a whole.
It brings this 40 year litigation over the Pueblos' water rights to a
close while containing many protections for our own irrigation rights
from Pueblo water uses. Of prime importance, the Pueblos will not be
able to make priority calls against our water rights, and we will have
the ability to evaluate and protest new Pueblo water projects and
changes in water usage. Second, the State adjudication Court will
retain jurisdiction to enforce and interpret the Settlement Agreement
and appeals from Pueblo administrative decisions as to their water
rights. The parties will be seeking State legislation to authorize such
appeals to the State adjudication Court. In addition, $12 Million in
State funding will be provided for development of water projects to
improve and conserve our water supplies and evaluate and protest Pueblo
water projects that might impact Acequia water supplies.
Because of the many benefits it provides, our Acequia approved the
Settlement Agreement on August 23, 2022 by vote of our our board
meeting in quorum after public notice given in accordance with our
Bylaws and the New Mexico Open Meetings Act. We fully support Senate
Bill S. 4898 and urge you to do so. We would welcome the opportunity to
discuss this further with you and your staffers and answer any
questions you may have.
Thank you for your representation of our interests and your efforts
on our behalf.
Sincerely,
Joseph F. Arite, Chair
______
Village of Milan
October 25, 2022
Dear Senator Lujan:
The Village of Milan, New Mexico, respectfully requests your
support for Senate Bill 4898, the Pueblos of Acoma and Laguna Water
Rights Settlement Act of 2022. This Bill would authorize and ratify the
Settlement Agreement among the State of New Mexico, the Pueblos of
Acoma and Laguna, the City of Grants, the Village of Milan, the
Association of Community Ditches of the Rio San Jose, and the
Association's nine member-acequias and community ditches. The Bill also
would authorize the United States to sign the Settlement Agreement.
The Settlement Agreement resolves the water rights claims of the
Pueblos of Acoma and Laguna which have been the subject of litigation
and negotiation between the settlement parties since the 1980s. The
Board of Trustees of the Village of Milan unanimously approved the
Settlement Agreement on May 11, 2022, because it protects and benefits
the Village in several impo1iant ways. First, under the Settlement
Agreement the Pueblos have agreed to give up their right to request a
priority call against Milan and other junior non-Pueblo water rights
holders. Second, the Settlement Agreement provides administrative and
judicial procedures for protecting the Village's municipal water supply
from impairment caused by the Pueblos' future development of their
water rights. Third, the Settlement Agreement provides for up to $11
million in State funding to the Village for much-needed water
infrastructure repairs and improvements including the repair and
rehabilitation of municipal wells, water storage tanks, replacement of
water distribution lines, and the Joint Grants-Milan Project for Water
Re-Use, Water Conservation and Augmentation of the Rio San Jose.
A secure municipal water supply and reliable water infrastructure
are vital to Milan's ability to provide for the welfare of its
residents now and into the future. We therefore appreciate your Efforts
in helping to enact this critically impo1tant piece of legislation.
Please do not hesitate to contact us if we can provide any additional
information.
Respectfully,
Felix Gonzales, Mayor
Linda Cooke, Village Manager
______
TRIBAL COUNCIL RESOLUTION No. 2022-17--RESOLUTION APPROVING WATER
RIGHTS SETTLEMENT AGREEMENT FOR THE PUEBLO OF JEMEZ IN THE JEMEZ RIVER
STREAM ADJUDICATION
At a duly called meeting of the Tribal Council of the Pueblo of
Jemez, the following resolution was passed:
WHEREAS, the Pueblo of Jemez, since 1983, has been involved in
United States v. Abousleman, CV No. 83-1041, SC, a water adjudication
in the United States District Court for the District of New Mexico for
the Jemez River Basin; and
WHEREAS, the Jemez Pueblo Tribal Council passed a joint resolution
in the late 1990s with the Pueblos of Zia and Santa Ana expressing a
desire to seek an alternative resolution to the Abousleman case by
participating in water settlement negotiations; and
WHEREAS, the Pueblo of Jemez, by Resolution No. 94-28, hired
Natural Resources Consulting Engineers, Inc., as a consultant to
provide and develop on behalf of the Pueblo, a water negotiation plan
and strategy that will secure adequate water rights to meet Jemez
Pueblo's present and future agricultural and non-agricultural water
needs; and
WHEREAS, pursuant to Resolution No. 95-43, the Tribal Council
established the Jemez Pueblo Tribal Water Negotiation Team to assist
the consultant and legal counsel on developing a water negotiation
strategy and were authorized to engage in settlement negotiations and
to advocate the Pueblo's best interests in the settlement negotiations
in United States v. Abousleman; and
WHEREAS, the Pueblo of Jemez has been engaged in settlement
negotiations for many years on the Rio Jemez with the Pueblo of Zia,
the State of New Mexico, Jemez River Basin Water Users Coalition, San
Ysidro Community Ditch Association; City of Rio Rancho and the United
States of America (as Trustee for the Pueblos of Jemez and Zia); and
WHEREAS, the aforementioned parties in the Abousleman water rights
case have negotiated, over numerous meetings and discussions, the
attached Settlement Agreement which contain terms and provisions to
resolve the Pueblo's water rights claims on the Rio Jemez; and
WHEREAS, the Agreement recognizes the water rights of the Pueblo of
Jemez based on historic uses, as well as rights to future uses of water
within the Jemez River Basin and provides for alternative
administration between the Pueblos and nonpueblo water users centered
around groundwater augmentation intended to supplement surface water;
and
WHEREAS, the Settlement Agreement benefits the Pueblo of Jemez by
fully resolving the water rights claims of the Pueblo that have been
pending for 39 years in Federal Court quantifying the Pueblo's water
rights to historically irrigated acreage, domestic, commercial,
municipal and industrial uses, livestock uses and economic development
water for its own people now and into the future; and
WHEREAS, the Settlement of the Pueblo's water rights will provide
the federal funding from Congress to develop its water rights now and
into the future providing for employment opportunities and other
economic benefits to Pueblo members from construction, operation and
maintenance of numerous settlement projects and improvements.
NOW THEREFORE BE IT RESOLVED that the Tribal Council hereby
approves the water rights Settlement Agreement entitled ``Pueblos of
Jemez and Zia Water Rights Settlement Agreement'' negotiated by Pueblo
of Jemez, Pueblo of Zia, the State of New Mexico, Jemez River Basin
Water Users Coalition, San Ysidro Community Ditch Association; City of
Rio Rancho and the United States of America (as Trustee for the Pueblos
of Jemez and Zia) the parties in United States v. Abousleman and
authorize the Governor to sign the --Settlement Agreement on behalf of
the Pueblo of Jemez.
BE IT FURTHERMORE RESOLVED that the Governors, the Jemez Tribal
Water Negotiation team, legal counsel and our technical experts,
Natural Resources Consulting Engineers, Inc., are authorized to engage
in lobbying efforts with our New Mexico Congressional delegates,
members of Congress and Committees in Congress to have the settlement
legislation introduced and passed in Congress.
______
RESOLUTION NO. 22-11--APPROVING AND AUTHORIZING PUEBLOS OF JEMEZ AND
ZIA WATER RIGHTS SETTLEMENT LOCAL SETTLEMENT AGREEMENT
At a duly called meeting of the Pueblo of Zia Tribal Council, the
following resolution was adopted:
WHEREAS, the Pueblo of Zia (the ``Pueblo'') is a federally
recognized tribe that acts through its governing body, the Tribal
Council, which is charged with decisionmaking in all matters relative
to tribal natural resources and the general welfare of the tribe and
its tribal members;
WHEREAS, Pueblo of Zia and the Pueblo of Jemez, the United States
of America as trustee for the Pueblo of Jemez and the Pueblo of Zia,
the State of New Mexico, the Jemez River Basin Water Users Coalition,
of which the San Ysidro Community Ditch Association is one of 11 member
acequias of the Coalition, and the City of Rio Rancho (collectively the
``Parties'') have been actively involved in negotiations to resolve
issues concerning the rights to the use of the waters of the Jemez
River Basin, in the pending case United States of America, on its own
behalf, and on behalf of the Pueblos of Jemez, Santa Ana, and Zia; and
State of New Mexico, ex rel. State Engineer, Plaintiffs; and Pueblos of
Jemez, Santa Ana, and Zia, Plaintiffs-in-Intervention v. Tom
Abousleman, et al., Defendants, Civil No. 83-cv-01041 (KR);
WHEREAS, the Parties have reached a settlement agreement
quantifying the Pueblo's water rights in the Jemez River basin and
resolving other issues, the specific terms and conditions are set forth
in the Local Settlement Agreement attached hereto;
WHEREAS, the Tribal Council has carefully considered the attached
Local Settlement Agreement, has consulted with legal counsel on it, and
believes that it is in the best interests of the Pueblo to approve it.
NOW, THEREFORE, BE IT RESOLVED, that the Local Settlement Agreement
is hereby approved, and the Governor is authorized to sign the
Agreement on behalf of the Pueblo.
BE IT FURTHER RESOLVED, that the Governor is authorized and
directed to take such further actions as are necessary and appropriate
to carry out the purposes and intent of this Resolution.
______
Resolution Approving Settlement Agreement in State of New Mexico ex.
rel. State Engineer v. Kerr McGee Corp. et al. Cibola Cause No. D-1333-
CV-198300190 and No, D-1333-CV-198300220 (Combined) Resolution No. 22-
02
WHEREAS, Bluewater-Toltec Irrigation District (``District'') is an
organized community ditch and pursuant to 73-2-28, NMSA 1978, is a
political subdivision of the State of New Mexico; and
WHEREAS, the District is a party in the pending stream adjudication
of the Rio San Jose stream system styled as State of New Mexico ex.
rel. State Engineer v. Kerr McGee Corp. et. al. Cibola Cause No. D-l
333-CV-198300190 and No. D-1333-CV-198300220 (Combined); and
WHEREAS, counsel and the hydrologist for the District and for the
other area acequias and community ditches have engaged in confidential
settlement negotiations over the nature and extent of the water rights
of the Pueblos of Acoma and Laguna and the Navajo Nation in the Rio San
Jose Basin for a number of years; and
WHEREAS, counsel and hydrologists for the participating paities
have now negotiated a Local Settlement Agreement for consideration by
the District; and
WHEREAS, these settlement documents are still being finalized and
may require grammatical and minor language collections and
clarifications; and
WHEREAS, notice of a special meeting of the Board of Directors
(``Board'') of the District to consider this agreement was properly
published and mailed as required by Article III, Section 4 of the
District's bylaws; and
WHEREAS, the members of the Board then met in a special meeting
with a quornm present to review and consider this proposed settlement
agreement; and
WHEREAS, the Board has been presented with an analysis of the Local
Settlement Agreement by its counsel and has had the opportunity to
address any concerns or questions to counsel; and
WHEREAS, the Local Settlement Agreement includes many provisions
which are of benefit to BTID and its members; and
WHEREAS, the Board has the authority to and should decide whether
BTID should approve and execute the Local Settlement Agreement; and
WHEREAS, the Board of Directors, with a quorum of Directors
present, reviewed and considered the proposed Local Settlement
Agreement.
NOW, THEREFORE, BE IT RESOLVED by a majority vote of its board
members present that the Board hereby approves the Local Settlement
Agreement.
BE IT FURTHER RESOLVED that counsel for the District is authorized
to propose and to accept and approve what counsel considers to be any
minor modifications to these settlement documents.
______
Resolution Approving Settlement Agreement in State of New Mexico ex.
rel. State Engineer v. Kerr McGee Corp. et al. Cibola Cause No. D-1333-
CV-198300190 and No. D-1333-CV-198300220 (Combined)
WHEREAS, Cubero Acequia Association (``Association'') is an
organized acequia and pursuant to 73-2-28, NMSA 1978, is a political
subdivision of the State of New Mexico; and
WHEREAS, the Association is a party in the pending stream
adjudication of the Rio San Jose stream system styled as State of New
Mexico ex. rel. State Engineer v. Kerr McGee Corp. et. al. Cibola Cause
No. D-l333-CV-198300190 and No. D-l 333-CV-198300220 (Combined); and
WHEREAS, counsel and the hydrologist for the Association and for
the other area acequias and community ditches have engaged in
confidential settlement negotiations over the nature and extent of the
water rights of the Pueblos of Acoma and Laguna and the Navajo Nation
in the Rio San Jose Basin for a number of years; and
WHEREAS, counsel and hydrologists for the participating parties
have now negotiated a Local Settlement Agreement for consideration by
the Association; and
WHEREAS, these settlement documents are still being finalized and
may require grammatical and minor language corrections and
clarifications; and
WHEREAS, notice of a special meeting of the members of the
Association to consider this agreement was properly posted as required
by the Association's bylaws; and
WHEREAS, the members of the Association then met in a special
meeting with a quorum present to review and consider this proposed
settlement agreement.
NOW, THEREFORE, BE IT RESOLVED by a majority vote of its members
present that the Association hereby approves the Local Settlement
Agreement.
BE IT FURTHER RESOLVED that counsel for the Association are
authorized to propose and to accept and approve what they consider to
be any minor modifications to these settlement documents.
______
Resolution Approving Settlement Agreement in State of New Mexico ex.
rel. State Engineer v. Kerr McGee Corp. et al. Cibola Cause No. D-1333-
CV-198300190 and No. D-1333-CV-198300220 (Combined)
WHEREAS, Murray Acres Irrigation Association (``Murray Acres'') is
a community ditch association and pursuant to 73-2-28, NMSA 1978 is a
political subdivision of the State of New Mexico; and
WHEREAS, Murray Acres is a party in the pending stream adjudication
of the Rio San Jose stream system styled as State of New Mexico ex.
rel. State Engineer v. Kerr McGee Corp. et. al. Cibola Cause No. D-
1333-CV-198300190 and No. D-1333-CV-198300220 (Combined); and
WHEREAS, counsel and hydrologist for Murray Acres and for the other
acequias and community ditches of the Rio San Jose have engaged in
confidential settlement negotiations over the nature and extent of the
water rights of the Pueblos of Acoma and Laguna and the Navajo Nation
in the Rio San Jose Basin for a number of years; and
WHEREAS, counsel and hydrologists for the participating settling
parties have negotiated a Local Settlement Agreement for consideration
by Murray Acres; and
WHEREAS, the President called a special meeting of the members of
Murray Acres to review and consider whether Murray Acres should execute
the Local Settlement Agreement; and
WHEREAS, notice of the special meeting was provided by hand
delivery of the notice and agenda to the members of Murray Acres and by
posting at U.S. Post Office 105 Airport Road, Milan, New Mexico; and
WHEREAS, the Local Settlement Agreement is still being revised by
the settling parties as to nonsubstantive grammatical and language
corrections; and
WHEREAS, the members of Murray Acres have reviewed and considered
the proposed Local Settlement Agreement;
NOW, THEREFORE, BE IT RESOLVED that Murray Acres hereby approves
the Local Settlement Agreement.
BE IT FURTHER RESOLVED that counsel for Murray Acres is authorized
to accept and approve what they consider to be any non-substantive
modifications to the Local Settlement Agreement. Resolution Approving
Settlement Agreement--Murray Acres Irrigation Association
______
Resolution Approving Settlement Agreement in State of New Mexico ex.
rel. State Engineer v. Kerr McGee Corp. et al. Cibola Cause No. D-1333-
CV-198300190 and No. D-1333-CV-198300220 (Combined)
WHEREAS, San Mateo Irrigation Association (``San Mateo'') is a
community ditch association and pursuant to 73-2-28, NMSA 1978 is a
political subdivision of the State of New Mexico; and
WHEREAS, San Mateo is a party in the pending stream adjudication of
the Rio San Jose stream system styled as State of New Mexico ex. rel.
State Engineer v. Kerr McGee Corp. et. al. Cibola Cause No.D-1333-CV-
198300190 and No. D-1333-CV-198300220 (Combined); and
WHEREAS, counsel and hydrologist for San Mateo and for the other
acequias and community ditches of the Rio San Jose have engaged in
confidential settlement negotiations over the nature and extent of the
water rights of the Pueblos of Acoma and Laguna and the Navajo Nation
in the Rio San Jose Basin for a number of years; and
WHEREAS, counsel and hydrologists for the participating settling
parties have negotiated a Local Settlement Agreement for consideration
by San Mateo; and
WHEREAS, the Local Settlement Agreement is still being revised by
the settling parties as to non-substantive grammatical and language
corrections; and
WHEREAS, the Commissioners called a special meeting of the members
of San Mateo to review and consider whether San Mateo should execute
the Local Settlement Agreement; and
WHEREAS, notice of the special meeting was provided in accordance
with the Bylaws Article 3, Sections 6 and 7 by posting the notice and
agenda at the Fire Station House in San Mateo, New Mexico on July 15,
2022; and
WHEREAS, more than 40 percent of the members current in payment of
their dues attended the special meeting; therefore, there was a quorum
for a vote by the members as required by the Bylaws, Article 3, Section
5; and
WHEREAS, the members of San Mateo with a quorum present reviewed
and considered the proposed Local Settlement Agreement;
NOW, THEREFORE, BE IT RESOLVED by majority vote of the members
taken in accordance with the Bylaws, Article 3, Section 5, that San
Mateo hereby approves the Local Settlement Agreement,
BE IT FURTHER RESOLVED that counsel for San Mateo are authorized to
accept and approve what they consider to be any non-substantive
modifications to the Local Settlement Agreement.
______
Resolution Approving Settlement Agreement in State of New Mexico ex.
rel. State Engineer v. Kerr McGee Corp. et al. Cibola Cause No. D-1333-
CV-198300190 and No. D-1333-CV-198300220 (Combined)
WHEREAS, Bluewater-Toltec Irrigation District (``District'') is an
organized community ditch and pursuant to 73-2-28, NMSA 1978, is a
political subdivision of the State of New Mexico; and
WHEREAS, the District is a party in the pending stream adjudication
of the Rio San Jose stream system styled as State of New Mexico ex.
rel. State Engineer v. Kerr McGee Corp. et. al. Cibola Cause No. D-l
333-CV-198300190 and No. D-1333-CV-198300220 (Combined); and
WHEREAS, counsel and the hydrologist for the District and for the
other area acequias and community ditches have engaged in confidential
settlement negotiations over the nature and extent of the water rights
of the Pueblos of Acoma and Laguna and the Navajo Nation in the Rio San
Jose Basin for a number of years; and
WHEREAS, counsel and hydrologists for the participating parties
have now negotiated a Local Settlement Agreement for consideration by
the District; and
WHEREAS, these settlement documents are still being finalized and
may require grammatical and minor language corrections and
clarifications; and
WHEREAS, notice of a special meeting of the Board of Directors
(``Board'') of the District to consider this agreement was properly
published and mailed as required by Article III, Section 4 of the
District's bylaws; and
WHEREAS, the members of the Board then met in a special meeting
with a quornm present to review and consider this proposed settlement
agreement; and
WHEREAS, the Board has been presented with an analysis of the Local
Settlement Agreement by its counsel and has had the opportunity to
address any concerns or questions to counsel; and
WHEREAS, the Local Settlement Agreement includes many provisions
which are of benefit to BTID and its members; and
WHEREAS, the Board has the authority to and should decide whether
BTID should approve and execute the Local Settlement Agreement; and
WHEREAS, the Board of Directors, with a quorum of Directors
present, reviewed and considered the proposed Local Settlement
Agreement.
NOW, THEREFORE, BE IT RESOLVED by a majority vote of its board
members present that the Board hereby approves the Local Settlement
Agreement.
BE IT FURTHER RESOLVED that counsel for the District is authorized
to propose and to accept and approve what counsel considers to be any
minor modifications to these settlement documents.
______
Resolution Approving Settlement Agreement in State of New Mexico ex.
rel. State Engineer v. Kerr McGee Corp. et al. Cibola Cause No. D-1333-
CV-198300190 and No. D-1333-CV-198300220 (Combined)
WHEREAS, Seboyeta Community Irrigation Association
(``Association'') is an organized acequia and pursuant to 73-2-28
NMSA 1978 is a political subdivision of the State of New Mexico; and
WHEREAS, the Association is a party in the pending stream
adjudication of the Rio San Jose stream system styled as State of New
Mexico ex. rel. State Engineer v. Kerr McGee Corp. et. al. Cibola Cause
No. D-1333-CV-198300 190 and No. D-1333-CV-198300220 (Combined); and
WHEREAS, counsel and the hydrologist for the Association and for
the other area acequias and community ditches have engaged in
confidential settlement negotiations over the nature and extent of the
water rights of the Pueblos of Acoma and Laguna and the Navajo Nation
in the Rio San Jose Basin for a number of years; and
WHEREAS, counsel and hydrologists for the participating parties
have now negotiated a Local Settlement Agreement for consideration by
the Association; and
WHEREAS, these settlement documents are still being finalized and
may require grammatical and minor language corrections and
clarifications; and
WHEREAS, notice of a special meeting of the members of the
Association to consider this agreement was properly posted as required
by the Association's bylaws; and
WHEREAS, the members of the Association then met in a special
meeting with a quorum present to review and consider this proposed
settlement agreement.
NOW, THEREFORE, BE IT RESOLVED by a majority vote of its members
present that the Association hereby approves the Local Settlement
Agreement.
BE IT FURTHER RESOLVED that counsel for the Association are
authorized to propose and to accept and approve what they consider to
be any minor modifications to these settlement documents.
[all]