[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
H.R. 1304, H.R. 3977, H.R. 6599, H.R. 7240,
H.R. 8685, H.R. 8791, H.R. 8920, H.R. 8940,
H.R. 8945, H.R. 8949, H.R. 8951, AND H.R. 8953
=======================================================================
LEGISLATIVE HEARING
BEFORE THE
SUBCOMMITTEE ON WATER, WILDLIFE AND
FISHERIES
OF THE
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
__________
Tuesday, July 23, 2024
__________
Serial No. 118-138
__________
Printed for the use of the Committee on Natural Resources
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
or
Committee address: http://naturalresources.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
56-360 PDF WASHINGTON : 2025
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COMMITTEE ON NATURAL RESOURCES
BRUCE WESTERMAN, AR, Chairman
DOUG LAMBORN, CO, Vice Chairman
RAUL M. GRIJALVA, AZ, Ranking Member
Doug Lamborn, CO Grace F. Napolitano, CA
Robert J. Wittman, VA Gregorio Kilili Camacho Sablan,
Tom McClintock, CA CNMI
Paul Gosar, AZ Jared Huffman, CA
Garret Graves, LA Ruben Gallego, AZ
Aumua Amata C. Radewagen, AS Joe Neguse, CO
Doug LaMalfa, CA Mike Levin, CA
Daniel Webster, FL Katie Porter, CA
Jenniffer Gonzalez-Colon, PR Teresa Leger Fernandez, NM
Russ Fulcher, ID Melanie A. Stansbury, NM
Pete Stauber, MN Mary Sattler Peltola, AK
John R. Curtis, UT Alexandria Ocasio-Cortez, NY
Tom Tiffany, WI Kevin Mullin, CA
Jerry Carl, AL Val T. Hoyle, OR
Matt Rosendale, MT Sydney Kamlager-Dove, CA
Lauren Boebert, CO Seth Magaziner, RI
Cliff Bentz, OR Nydia M. Velazquez, NY
Jen Kiggans, VA Ed Case, HI
Jim Moylan, GU Debbie Dingell, MI
Wesley P. Hunt, TX Susie Lee, NV
Mike Collins, GA
Anna Paulina Luna, FL
John Duarte, CA
Harriet M. Hageman, WY
Vivian Moeglein, Staff Director
Tom Connally, Chief Counsel
Lora Snyder, Democratic Staff Director
http://naturalresources.house.gov
------
SUBCOMMITTEE ON WATER, WILDLIFE AND FISHERIES
CLIFF BENTZ, OR, Chairman
JEN KIGGANS, VA, Vice Chair
JARED HUFFMAN, CA, Ranking Member
Robert J. Wittman, VA Grace F. Napolitano, CA
Tom McClintock, CA Mike Levin, CA
Garret Graves, LA Mary Sattler Peltola, AK
Aumua Amata C. Radewagen, AS Kevin Mullin, CA
Doug LaMalfa, CA Val T. Hoyle, OR
Daniel Webster, FL Seth Magaziner, RI
Jenniffer Gonzalez-Colon, PR Debbie Dingell, MI
Jerry Carl, AL Ruben Gallego, AZ
Lauren Boebert, CO Joe Neguse, CO
Jen Kiggans, VA Katie Porter, CA
Anna Paulina Luna, FL Ed Case, HI
John Duarte, CA Raul M. Grijalva, AZ, ex officio
Harriet M. Hageman, WY
Bruce Westerman, AR, ex officio
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CONTENTS
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Page
Hearing Memo..................................................... vii
Hearing held on Tuesday, July 23, 2024........................... 1
Statement of Members:
Bentz, Hon. Cliff, a Representative in Congress from the
State of Oregon............................................ 3
Panel I:
Leger Fernandez, Hon. Teresa, a Representative in Congress
from the State of New Mexico............................... 4
Gallego, Hon. Ruben, a Representative in Congress from the
State of Arizona........................................... 40
Vasquez, Hon. Gabe, a Representative in Congress from the
State of New Mexico........................................ 42
Zinke, Hon. Ryan, a Representative in Congress from the State
of Montana................................................. 44
Rosendale, Hon. Matt, a Representative in Congress from the
State of Montana........................................... 45
Ciscomani, Hon. Juan, a Representative in Congress from the
State of Arizona........................................... 46
Statement of Witnesses:
Panel II:
Newland, Hon. Bryan, Assistant Secretary for Indian Affairs,
Department of the Interior, Washington, DC................. 58
Prepared statement of.................................... 60
Stiffarm, Hon. Jeffrey, President, Fort Belknap Indian
Community, Harlem, Montana................................. 85
Prepared statement of.................................... 86
White Clay, Hon. Frank, Chairman, Crow Tribe of Indians, Crow
Agency, Montana............................................ 93
Prepared statement of.................................... 95
Nieto, Hon. Lester Shine, Vice Chairman, Tule River Indian
Tribe of California, Porterville, California............... 98
Prepared statement of.................................... 99
Phillips, Hon. Larry, Jr., Governor, Ohkay Owingeh Pueblo,
Ohkay Owingeh, New Mexico.................................. 111
Prepared statement of.................................... 113
Kucate, Hon. Arden, Governor, Pueblo of Zuni, Zuni, New
Mexico..................................................... 116
Prepared statement of.................................... 117
Supplemental testimony submitted for the record.......... 119
Manoukian, Marko, Co-Chair, St. Mary Rehabilitation Working
Group, Malta, Montana, prepared statement of............... 190
Questions submitted for the record....................... 191
Panel III:
Palumbo, David, Deputy Commissioner of Operations, Bureau of
Reclamation, Department of the Interior, Washington, DC.... 135
Prepared statement of.................................... 60
Andrews, Hon. Craig, Vice Chairman, Hopi Tribe, Kykotsmovi,
Arizona.................................................... 137
Prepared statement of.................................... 138
Lewis, Hon. Tanya, Chairwoman, Yavapai-Apache Nation, Upper
Verde Valley, Arizona...................................... 146
Prepared statement of.................................... 148
Supplemental testimony submitted for the record.......... 153
Nygren, Hon. Buu, President, Navajo Nation, Window Rock,
Arizona.................................................... 155
Prepared statement of.................................... 156
Romero, Hon. Fred, Governor, Pueblo of Taos, Taos, New
Mexico, prepared statement of.............................. 185
Vicente, Hon. Randall, Governor, Pueblo of Acoma, Acoma, New
Mexico..................................................... 167
Prepared statement of.................................... 169
Additional Materials Submitted for the Record:
Submissions for the Record by Representative Bentz
Colorado River Authority of Utah, Letter of Support H.R.
8940................................................... 193
Submissions for the Record by Representative Ciscomani
Thomas Buschatzke, Director, Arizona Department of Water
Resources, Statement for the Record in Support of H.R.
8940................................................... 47
Leslie A. Meyers, Associate General Manager, Salt River
Valley Water Users' Association, Statement for the
Record in Support of H.R. 8940......................... 53
Brenda Burman, General Manager, Central Arizona Water
Conservation District, Statement for the Record in
Support of H.R. 8940................................... 56
Submissions for the Record by Representative Grijalva
Becky Daggett, Mayor, City of Flagstaff, Statement for
the Record in Support of H.R. 8940..................... 196
Submissions for the Record by Representative Hageman
State of Wyoming, State Engineer's Office, Comments on
H.R. 8940.............................................. 199
Submissions for the Record by Representative Leger Fernandez
Rio De Chama Acequia Association, Letter of Support on
H.R. 8685.............................................. 6
City of Espanola, Letter of Support on H.R. 8685......... 7
Tanya Trujillo, New Mexico State Engineer, Statement for
the Record on H.R. 1304, H.R. 8685, H.R. 3977, H.R.
6599, H.R. 8940, H.R. 8945, H.R. 8951.................. 8
All Pueblo Council of Governors, Resolution APCG 2024-02. 16
Pueblo of Jemez, Statement for the Record on H.R. 1304... 17
City of Gallup, Letter to the Committee in Support of
H.R. 3977.............................................. 24
David Eason, City of Gallup Attorney, Statement for the
Record on H.R. 3977.................................... 25
Louis Bonaguidi, Mayor of Gallup, Statement for the
Record on H.R. 3977.................................... 29
Northern Pueblos Tributary Water Rights Association,
Letter of Support H.R. 6599............................ 31
La Asociacion de las Acequias del Rio Vallecitos, Letter
of Support H.R. 8685................................... 32
Asociacion de Acequias Nortenas de Rio Arriba, Letter of
Support H.R. 8685...................................... 32
El Rito Ditch Association, Letter of Support H.R. 8685... 33
Rio Rancho, Letter of Support H.R. 1304.................. 34
La Acequia Madre del Ojo del Gallo, Letter of Support
H.R. 1304.............................................. 34
Cebolletita Acequia Association, Letter of Support H.R.
1304................................................... 35
Community Ditch of San Jose de La Cienega, Letter of
Support H.R. 1304...................................... 36
Cubero Acequia Association, Letter of Support and
Resolution H.R. 1304................................... 37
Village of Milan, NM, Letter of Support H.R. 1304........ 38
New Mexico Interstate Stream Commission, Letter of
Support H.R. 3977...................................... 39
Submissions for the Record by Representative Schweikert
Leslie Meyers, Assoc. General Manager, Salt River Valley
Water Users Assoc., Statement for the Record in Support
of H.R. 8949........................................... 202
American Rivers, Letter to the Committee in Support of
H.R. 8949.............................................. 205
Submissions for the Record by Representative Vazquez
State of New Mexico, Office of State Engineer, Letter to
Rep. Vazquez in Support of H.R. 8951................... 42
Pueblo of Zuni, American Rivers, Letter to Rep. Vazquez
in Support of H.R. 8951................................ 43
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
To: Subcommittee on Water, Wildlife and Fisheries Republican
Members
From: Subcommittee on Water, Wildlife and Fisheries staff: Annick
Miller, x58331 ([email protected]), Doug Levine
(doug.levine@mail. house.gov), Kirby Struhar
([email protected]), and Thomas Shipman
([email protected])
Date: Tuesday, July 23, 2024
Subject: Legislative Hearing on 12 Bills
________________________________________________________________________
The Subcommittee on Water, Wildlife and Fisheries will hold a
legislative hearing on H.R. 1304 (Rep. Leger Fernandez), ``Rio San Jose
and Rio Jemez Water Settlements Act of 2023''; H.R. 3977 (Rep. Leger
Fernandez), ``Navajo-Gallup Water Supply Project Amendments Act of
2023''; H.R. 6599 (Rep. Leger Fernandez), ``Technical Corrections to
the Northwestern New Mexico Rural Water Projects Act, Taos Pueblo
Indian Water Rights Settlement Act, and Aamodt Litigation Settlement
Act''; H.R. 7240 (Rep. Rosendale), ``Fort Belknap Indian Community
Water Rights Settlement Act of 2024''; H.R. 8685 (Rep. Leger
Fernandez), ``Ohkay Owingeh Rio Chama Water Rights Settlement Act of
2024''; H.R. 8791 (Rep. Zinke), ``Fort Belknap Indian Community Water
Rights Settlement Act of 2024''; H.R. 8920 (Rep. Fong), ``Tule River
Tribe Reserved Water Rights Settlement Act of 2024''; H.R. 8940 (Rep.
Ciscomani), ``Northeastern Arizona Indian Water Rights Settlement Act
of 2024''; H.R. 8945 (Rep. Leger Fernandez), ``Navajo Nation Rio San
Jose Stream System Water Rights Settlement Act of 2024''; H.R. 8949
(Rep. Schweikert), ``Yavapai-Apache Nation Water Rights Settlement Act
of 2024''; H.R. 8951 (Rep. Vasquez), ``Zuni Indian Tribe Water Rights
Settlement Act of 2024''; and H.R. 8953 (Rep. Zinke), ``Crow Tribe
Water Rights Settlement Amendments Act of 2024''
The hearing will take place on Tuesday, July 23, 2024, at 10:15
a.m. in 1324 Longworth House Office Building.
Member offices are requested to notify Lindsay Walton
(lindsay.walton@mail. house.gov) by 4:30 p.m. on Monday, July 22, 2024,
if their Member intends to participate in the hearing.
I. KEY MESSAGES
The House Committee on Natural Resources has primary
authorizing jurisdiction over the legislative resolution of
Indian water rights claims.
It has been the longstanding policy of the United States
that disputes regarding Indian water rights should be
resolved through negotiated settlement rather than through
litigation.
Indian water rights settlements should be completed in
such a way that all outstanding water claims are resolved,
and finality is achieved.
The federal government's involvement in the Indian water
rights settlement process is guided by a 1990 policy
statement.
This hearing will examine how the proposed settlements,
which collectively total over $12 billion, meet the
criteria set out by the federal government.
II. WITNESSES
Panel I
Members of Congress TBD
Panel II--(H.R. 7240, H.R. 8685, H.R. 8791, H.R. 8920, H.R. 8951, and
H.R. 8953)
The Hon. Bryan Newland, Assistant Secretary for Indian
Affairs, Department of the Interior, Washington, DC (all
bills)
The Hon. Jeffery Stiffram, President, Fort Belknap Indian
Community, Harlem, MT (H.R. 8791)
The Hon. Frank White Clay, Chairman, Crow Tribe of
Indians, Crow Agency, MT (H.R. 8953)
The Hon. Lester Shine Nieto, Vice Chairman, Tule River
Indian Tribe of California, Porterville, CA (H.R. 8920)
The Hon. Larry Phillips, Jr., Governor, Ohkay Owingeh
Pueblo, Ohkay Owingeh, NM (H.R. 8685) [Minority Witness]
The Hon. Arden Kucate, Governor, Pueblo of Zuni, Zuni, NM
(H.R. 8951) [Minority Witness]
Mr. Marko Manoukian, Co-Chair, St. Mary Rehabilitation
Working Group, Malta, MT (H.R. 7240)
Panel III--(H.R. 1304, H.R. 3977, H.R. 6599, H.R. 8940, H.R. 8945, and
H.R. 8949)
Mr. David Palumbo, Deputy Commissioner of Operations,
Bureau of Reclamation, Department of the Interior,
Washington, DC (all bills)
The Hon. Craig Andrews, Vice Chairman, Hopi Tribe,
Kykotsmovi, AZ (H.R. 8940)
The Hon. Tanya Lewis, Chairwoman, Yavapai-Apache Nation,
Upper Verde Valley, AZ (H.R. 8949)
The Hon. Buu Nygren, President, Navajo Nation, Window
Rock, AZ (H.R. 3977, H.R. 6599, H.R. 8940, and H.R. 8945)
[Minority Witness]
The Hon. Fred Romero, Governor, Pueblo of Taos, Taos, NM
(H.R. 6599) [Minority Witness]
The Hon. Randall Vicente, Governor, Pueblo of Acoma,
Acoma, NM (H.R. 1304) [Minority Witness]
III. BACKGROUND
Key Terms
Water Right: A water right is the right to use surface water,
groundwater, or other water resources. Each state has different rules
that define water rights. For most Western states, water rights are
based on the principles of prior appropriation and beneficial use.
Types of Water Rights:
Senior Right: A claim to water that is older (more senior)
than those of junior rightsholders. The older the claim,
the more secure the right. Senior water rights are often
associated with farming, ranching, and agricultural uses.
Junior Right: A claim to water that is more recent than
senior rightsholders. Junior rights are fulfilled after all
senior rights have been met. Junior rights are often
associated with municipal, environmental, or recreational
uses.
Federal Reserve Right: When land is withdrawn from public
domain by the federal government for tribal reservations,
national forests, or national parks, it holds a federal
reserve right. The date that the land was founded or
settled by the federal government is the date of the
associated water right.
Prior-Appropriation: Often described as ``first in time, first in
right,'' prior appropriation allocates water rights based on timing of
use, place of use, and purpose of use. In a prior appropriation
jurisdiction, water rights are granted based on when a person uses
water for a beneficial use. This allows for diverting water from its
source to fulfill water rights and determines who gets water during
times of shortage. Unlike in a riparian system, water rights are not
attached to land ownership.
Beneficial Use: Any use recognized by the state as being an
appropriate use of water. Common beneficial uses include irrigation,
hydropower generation, recreation, mined land reclamation, and other
valuable domestic, municipal, or commercial purposes.
Winters Doctrine: The 1908 United States Supreme Court (Supreme
Court) opinion in Winters v. United States held that by reserving land
for tribal use, the federal government implicitly reserves a sufficient
amount of water for the reservation.\1\ This case did not go into the
development of water rights (i.e., building infrastructure).
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\1\ Winters v. United States, 207 U.S. 564 (1908), https://
tile.loc.gov/storage-services/service/ll/usrep/usrep207/usrep207564/
usrep207564.pdf
Arizona v. Navajo Nation (No. 21-1484) and Department of the
Interior v. Navajo Nation (No. 22-51): In these consolidated cases, the
Navajo Nation alleged that their 1868 Treaty with the United States
requires the federal government to take affirmative steps to secure
water for the Navajo Nation. The Supreme Court's majority opinion held
that the 1868 treaty did not require the United States to take
affirmative steps to secure water for the Navajo Nation beyond those
that the Supreme Court identified in Winters.\2\ This meant that only a
specific and affirmative obligation in a treaty, statute, or regulation
could compel the United States to quantify or secure Tribal water
rights. Legislation enacting Indian water right settlements are the
typical route to ``compel'' the United States to develop these rights.
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\2\ Arizona v. Navajo Nation, 599 U.S. ____ (2023), https://
www.supremecourt.gov/opinions/22pdf/21-1484_aplc.pdf
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Indian Water Rights
Indian water rights were first recognized in the Supreme Court
decision Winters v. United States (1908).\3\ Under Winters, when
Congress reserves land (i.e., creates an Indian reservation), it
implicitly reserves water ``for a use which would be necessarily
continued through years.'' \4\ This has been translated to mean water
rights sufficient to fulfill the purpose of the reservation. In most
cases, however, the water rights in question are not quantified when
the reservation was established. Meaning they must often be adjudicated
under lengthy legal processes. Under Winters, water rights of tribes
are often senior to those of non-Indian water rights holders because
they date to the creation of the reservation. This process has
typically been addressed through litigation or, more recently, resolved
through negotiated settlements.
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\3\ Winters v. United States, supra note 1.
\4\ Id.
The quantification and adjudication of Indian water rights can be
costly and take several decades to complete. For this reason,
negotiated settlements have been the preferred means of resolving many
Indian water rights disputes. The federal government's involvement in
the Indian water rights settlement process is guided by a 1990 policy
statement established during the George H. W. Bush Administration.\5\
It lists 16 criteria to establish the basis for negotiation and
settlement of claims concerning Indian water rights. Some of the
criteria are:
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\5\ ``Criteria and Procedures for the Participation of the Federal
Government in Negotiations for the Settlement of Indian Water Rights
Claims,'' Working Group in Indian Water Settlements, Department of the
Interior. Federal Register, Vol. 55, No. 48, March 12, 1990. https://
www.doi.gov/sites/doi.gov/files/criteria-and-procedures-for-the-
participation-of-the-federal-government-in-negotiations-for-the-
settlement-of-indian-water-rights-claims.pdf
Settlements must resolve all outstanding water claims and
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provide finality (criterion 3).
The total cost of a settlement for all parties should not
exceed the value of the existing claims as calculated by
the federal government (criterion 4).
Federal contributions to a settlement should not exceed
the federal government's legal exposure and costs related
to federal trust responsibilities (criterion 5).
Should include non-federal cost share proportionate to the
benefits received (criterion 6).
Settlements should NOT include the following:
+ Federal subsidy of operations, maintenance and repair
(OM&R) costs of Indian and non-Indian parties (criterion
11(e)).
+ Per-capita distribution of trust (criterion 11(g)).
+ Exemption from Reclamation law (criterion 11(j)).
There are four steps associated with settlements: pre-negotiation,
negotiation, settlement, and implementation. Once the negotiation phase
is complete and the parties have agreed to specific terms, the
settlement typically is presented for congressional authorization.
Congressional authorization is provided through the enactment of
legislation authorizing funding for the settlement. As a result, Indian
water rights settlements have historically included authorizations of
specific water infrastructure projects or funds for the water to be
developed by the tribe.
H.R. 1304 (Rep. Leger Fernandez), ``Rio San Jose and Rio Jemez Water
Settlements Act of 2023''
H.R. 1304 would authorize the Secretary of the Interior to sign two
separate water rights settlement agreements that impact four Pueblo
chapters in Northern New Mexico. The Rio San Jose Settlement would
settle claims and active litigation between the Pueblo of Acoma and
Pueblo of Laguna against the State of New Mexico and other non-Indian
water users within the Rio San Jose basin. The Rio Jemez Settlement
would settle similar claims and litigation between the Pueblo of Jemez
and Pueblo of Zia against the State of New Mexico in the Rio Jemez
basin.
Rio San Jose Settlement
The Rio San Jose Settlement is a fund-based settlement that would
ratify the Pueblo of Acoma and Laguna's existing water rights to over
20,000 acre-feet per year (afy) in the Rio San Jose basin.\6\ This
would be split, 7,982 afy to Acoma and 12,263 afy to Laguna, and may
come from both groundwater and surface water sources. However, 1,300
afy of groundwater must also be reserved for economic development for
each tribe.
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\6\ Rio San Jose Stream System Water Rights Local Settlement
Agreement Among the Pueblo of Acoma, the Pueblo of Laguna, the Navajo
Nation, the State of New Mexico, the city of Grants, the Village of
Milan, the Association of Community Ditches of the Rio San Jose and
Nine Individual Acequias and Community Ditches, May 13, 2022, https://
www.ose.nm.gov/Legal/settlements_IWR.php.
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The settlement would protect non-Indian water users in the basin by
the tribe's agreeing not to make priority calls on the water rights of
non-Indian users. If not for this agreement, the tribes would have the
power to make priority calls because their water rights are senior to
those of non-Indian users. As a part of the settlement the tribes have
also agreed to establish Pueblo water codes. These codes will govern
the use of Pueblo water rights and provide a process for those impacted
by these rights to challenge their use.
The settlement would establish trust funds for both Acoma and
Laguna that total $850 million. Acoma would receive $296 million, and
Laguna would receive $464 million to use and develop water
infrastructure on their lands as they see fit and within their own
timeframe. For operation and maintenance of water infrastructure, Acoma
would receive $14 million, and Laguna would receive $26 million. The
tribes would also receive a total of $5 million for feasibility studies
for water supply infrastructure, $1.75 million for Acoma and $3.25 for
Laguna. An additional $45 million must be used jointly by the two
tribes to repair Acomita Dam, which is located on the Acoma
Reservation, but utilized by both tribes. In addition to the federal
money to the tribes, the agreement also includes over $36 million from
the State of New Mexico to non-Indian water users.
The bill sets a July 1, 2030, deadline as the enforceability date.
Should the deadline be missed, all the legal waivers and releases
included as part of the settlement expire.
Rio Jemez Settlement
The Rio Jemez Settlement is a fund-based settlement that would
ratify the Jemez and Zia Pueblo's water rights to more than 9,000 afy
in the Rio Jemez basin, 6,055 afy to Jemez and 3,699.4 afy to Zia, and
may come from both groundwater and surface water sources.\7\ This also
must include 1,200 afy for economic development for each tribe. Like
the Rio San Jose Settlement, the Rio Jemez Settlement would protect
non-Indian water users by the tribe's agreeing not to make priority
calls and to establish Pueblo water codes. The Pueblo of Santa Ana also
utilizes the Rio Jemez Basin but has chosen not to sign on to this
agreement and will be pursuing litigation to adjudicate their water
rights claims.
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\7\ Pueblos of Jemez and Zia Water Rights Settlement, United States
of America, et al. v. Abousleman, et al. Civil No. 83-cv-01041 (KR)
(Jemez River Basin adjudication) Local Settlement Agreement, May 11,
2022, https://www.ose.nm.gov/Legal/settlements_IWR.php.
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The agreement would establish trust funds for both tribes that
total $490 million, $290 for Jemez and $200 for Zia. Most of this
funding can be used as the tribes see fit to develop water
infrastructure on tribal lands and on their own timeframe. However, $25
million of the amounts deposited into each tribe's trust fund must be
used for economic development, environmental compliance, or other
administrative costs. In addition to the federal money to the tribe's,
the agreement also includes over $20 million from the State of New
Mexico to non-Indian water users.
The bill sets a July 1, 2030, deadline as the enforceability date.
Should the deadline be missed, all the legal waivers and releases
included as part of the settlement expire.
H.R. 3977 (Rep. Leger Fernandez), ``Navajo-Gallup Water Supply Project
Amendments Act of 2023''
H.R. 3977 amends the Northwestern New Mexico Rural Water Projects
Act authorized as part of the Omnibus Public Lands Management Act of
2009 (P.L. 111-11). The Act authorized and funded the construction of
the Navajo-Gallup Water Supply Project. This project is a key component
of the Navajo Nation San Juan River Basin Water Rights Settlement in
New Mexico. Notably, the settlement will not take effect until this
project is completed.\8\
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\8\ Navajo Nation, San Juan River New Mexico. https://nnwrc.navajo-
nsn.gov/Basin-Updates/San-Juan-River-New-Mexico
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The Navajo-Gallup Water Supply Project consists of two pipelines,
two water treatment plants, and several pumping stations to bring water
from the San Juan River to the Navajo Nation and other surrounding
communities.\9\ P.L. 111-11 authorized $870 million from fiscal year
(FY) 2009 through 2024 to construct this project,\10\ and required that
the project be completed by December 31, 2024.\11\ While progress has
been made and parts of the project are currently delivering water to
the Navajo Nation and other surrounding communities, portions of the
project are still under construction. For example, in September 2022,
the Bureau of Reclamation (Reclamation) announced a $73 million
contract for Archer Western Construction for the construction of two of
the project's pumping plants.\12\ H.R. 3977 would extend the
authorization through FY 2029.
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\9\ Testimony of Dr. Buu Nygren, President of the Navajo Nation.
Committee on Indian Affairs, U.S. Senate. July 12, 2023. https://
www.indian.senate.gov/wp-content/uploads/2023-07-12-HRG-Testimony-
Nygren.pdf
\10\ P.L. 111-11
\11\ Bureau of Reclamation. Navajo-Gallup Water Supply Project.
https://www.usbr.gov/uc/progact/navajo-gallup/index.html
\12\ Bureau of Reclamation. ``Reclamation awards $73 million
construction contract for continued progress on the Navajo-Gallup Water
Supply Project's San Juan Lateral.'' September 23, 2022. https://
www.usbr.gov/newsroom/news-release/4342
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H.R. 3977 also expands the project service area to serve the Navajo
Nation's Community of Lupton, Arizona and additional communities in New
Mexico. In testimony before the Senate Committee on Indian Affairs, the
Department of the Interior's (Interior) Assistant Secretary for Indian
Affairs, Bryan Newland, noted that this could ``help the Navajo Nation
increase the customer base and potentially lower OM&R [operation,
maintenance, and replacement] costs.'' \13\
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\13\ Statement of Bryan Newland, Assistant Secretary of the
Interior for Indian Affairs. U.S. Senate Committee on Indian Affairs.
July 12, 2023. https://www.indian.senate.gov/wp-content/uploads/2023-
07-12-HRG-Testimony-Newland.pdf
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The legislation increases the authorized Project cost ceiling by
providing an additional authorization of $725.7 million to complete the
Project, making the total Project cost $2.175 billion. This is
comprised of $689.45 million to address a funding cost gap, $30 million
for Navajo community connections to the Project water transmission
line, and $6.25 million for renewable energy features. During the
consideration of the original legislation, administration testimony
warned that they ``have not yet been able to fully analyze the costs of
this legislation.'' \14\ The bill also establishes a new $250 million
OM&R trust fund for the Navajo Nation and up to a $10 million OM&R
trust fund for the Jicarilla Apache Nation, the latter conditioned on
an ability to pay analysis. Lastly, the bill extends the date by which
the Project must be completed to December 31, 2029.
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\14\ Testimony of Robert Johnson, Commissioner of the Bureau of
Reclamation, and Carl Artman, Assistant Secretary of the Interior for
Indian Affairs. June 27, 2007. https://www.doi.gov/ocl/hearings/110/
hr1970_72407
H.R. 6599 (Rep. Leger Fernandez), ``Technical Corrections to the
Northwestern New Mexico Rural Water Projects Act, Taos Pueblo
Indian Water Rights Settlement Act, and Aamodt Litigation
---------------------------------------------------------------------------
Settlement Act''
H.R. 6599 would amend the Omnibus Public Land Management Act of
2009 and the Claims Resolution Act of 2010 to authorize funding for the
Navajo Nation Water Resources Development Trust Fund, the Taos Pueblo
Water Development Fund, and the Aamodt Settlement Pueblos' Fund
equivalent to the amounts that would have accrued to the trust funds if
the Interior had the authority to invest the funds original
appropriation.
When these settlements were enacted, the law did not explicitly
allow for Interior to invest the funds upon appropriation. However,
mistakenly, Interior started investing the funds.\15\ When Interior
discovered this error, the Solicitor's Office determined that the
interest amounts earned prior to the date that the funds were
authorized to be invested were contrary to the Antideficiency Act (P.L.
97-258, 31 U.S.C. Sec. 3302) and must be returned to Treasury.\16\
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\15\ Testimony of Jason Freihage. ``Legislative Hearing to receive
testimony on S. 2783, S. 3406, S. 3857 & S. 4365.'' Senate Committee on
Indian Affairs. July 10, 2024. https://www.indian.senate.gov/wp-
content/uploads/07-10-2024-Freihage-Testimony.pdf
\16\ Id.
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H.R. 6599 would return to the impacted Tribes the interest earned
on the funds that were returned to the Treasury. Specifically, it
authorizes appropriations totaling $18.5 million, of which $7.79
million would be deposited into the Taos Pueblo Water Development Fund,
$4.3 million for the Aamodt Settlement Pueblos' Fund, and $6.35 million
for the Navajo Nation Water Resources Development Trust Fund.
H.R. 7240 (Rep. Rosendale), ``Fort Belknap Indian Community Water
Rights Settlement Act of 2024''
The Gros Ventre and Assiniboine Tribes of the Fort Belknap Indian
Community (FBIC) were at the center of the Supreme Court's Winters
decision. Since 1990 the FBIC, the State of Montana, and the United
States have engaged in negotiations regarding the quantification of the
Tribes' water rights. In 2001, the Montana legislature approved the
Montana-Fort Belknap Indian Community Water Rights Compact
(Compact).\17\ Congressional approval is necessary before the United
States may join in the Compact.
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\17\ Fort Belknap-Montana Compact Ratified, 85-20-1001 Montana Code
Annotated, https://leg.mt.gov/bills/mca/title_0850/chapter_0200/
part_0100/section_0010/0850-0200-0100-0010.html
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H.R. 7240 would approve and fund the Compact. In the Compact, the
FBIC is entitled ``to divert up to 645 cubic feet per second ``Cfs'' of
the United States' Share of the Natural Flow of the Milk River and its
tributaries upstream from the diversion point on the Reservation.''
\18\ According to the Department of the Interior's testimony on the
Senate companion this translates to ``over 446,000 afy of surface
water, plus groundwater.'' \19\ In addition, H.R. 7240 includes a
20,000 afy allocation of storage from Lake Elwell, a Reclamation
facility on the Marias River, also known as Tiber Reservoir.\20\
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\18\ Id.
\19\ Statement of Bryan Newland, Assistant Secretary for Indian
Affairs, Department of the Interior, before the Senate Committee on
Indian Affairs. July 12, 2023. https://www.doi.gov/ocl/s-1987
\20\ Section 7 of H.R. 7240, https://www.congress.gov/bill/118th-
congress/house-bill/7240/text
---------------------------------------------------------------------------
The bill would also authorize over $1.4 billion to implement its
provisions and those of the Compact. Of that total, $435.8 million is
mandatory funding. The State of Montana would contribute $5 million to
the cost of the settlement. These funds would be used for three general
purposes: rehabilitation of the Fort Belknap Indian Irrigation Project;
administration and development of the Tribes' water rights; and
mitigation for the impacts on water users outside the Reservation.
As introduced, the legislation does not include an offset for the
new funding authorizations. In addition, there are several provisions
that go beyond a water right settlement, including the authorization of
Tribal wellness center and several land exchanges. Specifically, the
bill transfers 10,322.58 acres of federal land and 3,519.3 acres of
land currently owned by the Tribes into trust for the Tribes as part of
the Reservation.
The bill sets a January 21, 2034, deadline for all the funding to
be made available, and a January 21, 2035, deadline as the
enforceability date. Should those deadlines be missed, all the legal
waivers and releases included as part of the settlement expire.
Breakdown of federal funds provided in H.R. 7240:
Tribal Irrigation and Other Water Resources Development: funding
will be used for the development of new irrigated lands through a new
water infrastructure project, wetlands restoration, and environmental
compliance.
Discretionary: $89.6 million
Mandatory: $29.8 million
Irrigation Project System Account: funding will be used for the
rehabilitation, modernization, and expansion of the Fort Belknap
Irrigation Project.
Discretionary: $187 million
Mandatory: $228.7 million
Domestic Water and Sewer Systems/Lake Elwell Project: funding will
be used for drinking water supply and treatment plants, sewer,
infrastructure to deliver water from Lake Elwell, and ``Tribal wellness
center for a workforce health and wellbeing project.''
Discretionary: $331.8 million
Mandatory: $110.6 million
Water Resources and Water Rights Administration/Operation and
Maintenance: funding will be used to develop a Tribal water code, the
administration of water rights and development, and operations,
maintenance and repair activities.
Mandatory: $66.6 million
Milk River Project Mitigation: Milk River Project is a Reclamation
project that would be impacted by the development of the Fort Belknap
Indian Community's water rights. The Compact includes an agreement to
implement mitigation measures. Funding will be used to rehabilitate
project components that are over 100 years old to restore capacity in
the system. This funding is specifically made non-reimbursable to the
project.
Discretionary: $300 million
H.R. 8685 (Rep. Leger Fernandez), ``Ohkay Owingeh Rio Chama Water
Rights Settlement Act of 2024''
H.R. 8685 would approve the Settlement Agreement concerning the
water rights claims of Ohkay Owingeh Pueblo in the general stream
adjudication of the Rio Chama Stream System in New Mexico.\21\ Of note,
the Pueblo has other outstanding water rights claims, primarily on the
Rio Grande. Those are not settled in this legislation.
---------------------------------------------------------------------------
\21\ State of New Mexico, ex rel. State Engineer v. Aragon, Civil
No. 69-cv-07941-KWR/KK (all Ohkay Owingeh Claims)
H.R. 8685 codifies the Settlement Agreement's quantification of the
---------------------------------------------------------------------------
Ohkay Owingeh water rights for the following uses:
Irrigation: the right to use surface water to irrigate 310.45 acres
based on Ohkay Owingeh's past and present uses.\22\ This results in the
following respective quantities: Consumptive Irrigation Requirement:
522 afy, Farm Delivery Requirement: 1,158 afy, and Project Diversion
Requirement: 1,929 afy.\23\
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\22\ Ohkay Owingeh Rio Chama Water Rights Settlement, State of New
Mexico, ex rel. State Engineer v. Roman Aragon, et al., Case No. 69-cv-
07941-KWR/KK (D.N.M.) Local Settlement Agreement, July 5, 2023 https://
www.ose.nm.gov/Legal/settlements_IWR.php
\23\ Id.
Livestock: The right to divert and consume water, including
springs, groundwater, or surface water, on Pueblo Lands within the Rio
Chama Steam System portion of the Pueblo Grant for livestock watering,
which includes the right to water wildlife.
Historic Domestic, Commercial, Municipal, and Industrial: the right
to divert 6 afy from two existing domestic wells, the diversion from
each well shall not exceed 3 afy. Additionally, the right to divert 204
afy for existing public water system from existing wells.
Groundwater Economic Development Water: The right to divert and
consume an additional 771 afy of groundwater in the Rio Chama Stream
System portion of the Pueblo Grant for domestic, commercial, municipal,
and industrial purposes.
Additional Irrigation Acres: Ohkay Owingeh has the right to
irrigate up to 1,562 additional acres within the Rio Chama Stream
System portion of the Pueblo Grant. The 1,562-acre limit on this right
derives from the agreed upon total number of acres in the Rio Chama
Stream System portion of the Pueblo Grant that was historically or is
currently irrigated and is now owned by non-Pueblo persons.
Additionally, the legislation establishes the Ohkay Owingeh Water
Rights Settlement Trust Fund, which would provide $745 million in
mandatory funding for specified uses. These include domestic and
municipal supply or wastewater infrastructure, on-farm improvements for
irrigation, and watershed and endangered species habitat protection. As
introduced, the legislation does not include an offset for the new
funding authorizations. The State of New Mexico would contribute $131
million toward the fulfillment of the settlement agreement to fund
water development projects.
The bill sets a July 1, 2038, deadline as the enforceability date.
Should the deadline be missed, all the legal waivers and releases
included as part of the settlement expire.
H.R. 8791 (Rep. Zinke), ``Fort Belknap Indian Community Water Rights
Settlement Act of 2024''
H.R. 8791 includes the same language as H.R. 7240 (Rep. Rosendale),
a summary of which is included above. However, this bill also adds a
provision which authorizes appropriations for the Blackfeet Tribe in
Section 14. Specifically, this new provision would authorize $250
million in appropriations for a new water distribution and wastewater
treatment facility. This language does not impact the Blackfeet Tribe's
water rights settlement, which was signed into law in 2016.\24\
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\24\ Subtitle G, Part II, Title III of Public Law 114-322, https://
www.congress.gov/114/statute/STATUTE-130/STATUTE-130-Pg1628.pdf.
H.R. 8920 (Rep. Fong), ``Tule River Tribe Reserved Water Rights
---------------------------------------------------------------------------
Settlement Act of 2024''
H.R. 8920 approves and authorizes a water settlement agreement
between the Tule Tribe and downstream state-based water users, the Tule
River Association, and the South Tule Independent Ditch Company (2007
Agreement).\25\ The 2007 Agreement, which was amended in 2009,
established water allocations and release schedules for future water
storage projects that may be constructed by the Tribe on the South Fork
Tule River.\26\ H.R. 8920 establishes the Tribe's water right as 5,828
acre-feet per year of surface water from the South Fork of the Tule
River. Water use on the Reservation is largely domestic and municipal
as less than five percent of the Reservation is suitable for
agricultural purposes.\27\
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\25\ 2007 Agreement, https://republicans-
naturalresources.house.gov/UploadedFiles/Fully_Signed
_Tule_River_2007_and_2009_Settlement_Agreements.pdf
\26\ Testimony of Bryan Newland, ``Legislative Hearing to receive
testimony on S. 4870, S. 4896 & S. 4898.'' Senate Committee on Indian
Affairs. November 16, 2022. https://www.doi.gov/ocl/pending-
legislation-41
\27\ Id.
---------------------------------------------------------------------------
The bill establishes the Tule River Indian Tribe Settlement Trust
Fund and authorizes a total of $568 million in mandatory
appropriations. Of this $518 million would be for the Tule River Tribe
Water Development Projects Account and $50 million for the Tule River
Tribe Operations, Maintenance and Replacement Account. As written,
there are no non-federal contributions to this settlement.
Lastly, the bill sets the enforceability date for implementing the
settlement at eight years from the date of enactment. Failure to meet
this deadline results in the repeal of the legislation.
H.R. 8940 (Rep. Ciscomani), ``Northeastern Arizona Indian Water Rights
Settlement Act of 2024''
H.R. 8940 would settle the water rights claims of the Navajo
Nation, Hopi Tribe, and San Juan Southern Paiute Tribe (Tribes) in
Arizona by codifying the Settlement Agreement dated May 9, 2024
(Settlement Agreement).\28\ The Settlement Agreement resolves the
Tribes' claims on the Colorado River Basin, the Little Colorado River
Basin, the Gila River Basin, and aquifers and washes on tribal lands in
northeastern Arizona. While formal discussions began in 1994, efforts
to quantify these water rights date to the 1970s.\29\
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\28\ Northeastern Arizona Indian Water Rights Settlement Agreement,
May 9, 2024, https://nnwrc.navajo-nsn.gov/Portals/0/Files/
Arizona%20Settlement/CMY-26-24.pdf
\29\ Id.
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Navajo Nation
H.R. 8940 settles all the Navajo Nation's water rights within
Arizona. Specifically, the Settlement Agreement provides:
Underground Water: The right to use all underground water
on the Navajo Reservation, subject to an inter-tribal
agreement with the Hopi Tribe.
Effluent: The right to effluent developed on the Navajo
Reservation for any purpose determined by the Navajo
Nation, developed off of the Reservation on trust land and
allotments on those lands for any purpose determined by the
Navajo Nation in accordance with applicable law, and
developed on Navajo-owned fee land located outside of the
Reservation consistent with Arizona state law.
Springs: The right to all springs on the Navajo
Reservation, subject to an inter-tribal agreement with the
Hopi Tribe.
Little Colorado River Tributaries: The right to divert and
deplete all surface waters of the Little Colorado River
tributary streams that reach the Navajo Reservation, but
without diminishment of or interference with existing non-
tribal water rights on such streams.
Little Colorado River Mainstem: The right to divert and
deplete all surface waters of the Little Colorado River
that reach the Navajo Reservation, including specifically
identified water rights and priorities for certain lands,
without the right to make calls against existing upstream
or downstream off-Reservation water users with respect to
such mainstem water, and with the right to make calls
against new upstream or downstream off-Reservation water
users.
Navajo Nation Upper Basin Colorado River Water: The right
to 44,700 afy of Arizona's allocation of Upper Basin
Colorado River Water that may be diverted in Arizona, New
Mexico, or Utah and be transported and used on the Navajo
Reservation within Arizona whether located in the Upper
Basin or the Lower Basin.
Navajo Nation Cibola Water: The right to 100 afy of Hopi
Tribe Cibola water, if used in the same location and for
the same irrigation purpose as in the Hopi Tribe Cibola
contract, or 71.5 acre-feet per year if used in other
locations or for a different purpose, that may be diverted
in Arizona, New Mexico, or Utah and be transported and used
on the Navajo Reservation within Arizona whether located in
the Upper Basin or the Lower Basin, and be stored in either
of the two New Mexico reservoirs or in underground storage
facilities in Arizona, and may be leased or exchanged by
the Nation for use in Arizona, and be transported using
Central Arizona Project (CAP) facilities.
Navajo Nation Fourth Priority Water: The right to 3,500
afy of Fourth Priority Colorado River water that may be
diverted in Arizona, New Mexico, or Utah and transported
and used on the Navajo Reservation within Arizona whether
located in the Upper Basin or the Lower Basin, stored in
New Mexico reservoirs or in underground storage facilities
in Arizona, leased or exchanged by the Nation for use in
Arizona, and transported using CAP facilities.
Hopi Tribe
The Hopi Tribe's water rights within Arizona are quantified as
follows:
Underground Water: The right to use all underground water
on the Hopi Reservation, with an agreed upon 5,600 afy
limit on pumping from Navajo Aquifer.
Effluent: The right to effluent developed on the Hopi
Reservation for any purpose determined by the Hopi Tribe,
developed off of the Reservation on trust land for any
purpose determined by the Hopi Tribe in accordance with
applicable law, and developed on Hopi-owned fee land
located off of the Reservation consistent with Arizona
state law.
Surface Water: The right to divert and deplete all surface
water that reaches or flows within the Hopi Reservation,
subject to an inter-tribal agreement with the Navajo
Nation.
Springs: The right to all springs on the Hopi Reservation,
subject to an inter-tribal agreement with the Navajo
Nation.
Hopi Tribe Upper Basin Colorado River Water: The right to
2,300 afy of Arizona's allocation of Upper Basin Colorado
River water, for transport and use anywhere on the Hopi
Reservation and within Arizona whether located in the Upper
Basin or Lower Basin.
Hopi Tribe Cibola water: The right to 4,178 acre-feet per
year of Fourth Priority Water, 750 acre-feet per year of
Fifth Priority Water, and 1,000 afy of Sixth Priority Water
for use only within the State of Arizona, consistent with
the provisions of the Hopi Tribe Cibola contract.
San Juan Southern Paiute Tribe
The bill would establish an approximate 5,400-acre reservation for
the San Juan Southern Paiute Tribe from lands that are currently a part
of the Navajo Nation's reservation. The legislation would also ratify a
treaty between the San Juan Southern Paiute and Navajo Nation signed in
2000, which contains terms clarifying the sovereign authority of both
tribes, providing lands for a San Juan Southern Paiute reservation, and
resolving other related mutual concerns. The Indian and Insular Affairs
Subcommittee held a hearing on similar legislation on June 7, 2023.
Information on that hearing can be found here.
The legislation also quantifies the San Juan Southern Paiute
Tribe's water rights in Arizona as follows:
Underground Water: The right to all underground water in
the Southern Area.
Effluent: The right to all effluent developed by the San
Juan Southern Paiute Tribe for use on the Southern Area for
any purpose determined by the Tribe, developed off of the
Southern Area on trust land in accordance with applicable
law, and developed on San Juan Southern Paiute Tribe fee
land located outside of the Southern Area consistent with
Arizona state law.
Surface Water: The right to divert and deplete all surface
water that reaches or flows within the Southern Area.
Springs: The right to all springs in the Southern Area.
The right to water delivered by the Navajo Nation through
a service agreement with the Navajo Tribal Utility
Authority to the Southern Area, in an amount not to exceed
350 afy.
In total the bill authorizes $5 billion in mandatory funding for
the development of water infrastructure and related operation,
maintenance, and replacement work. Specifically, the bill authorizes an
initial $1.715 billion for Reclamation to construct a pipeline to
divert Colorado River water from Lake Powell to the Tribes. The bill
also provides for the authorization of appropriations of ``such sums''
for the completion of the pipeline, should the mandatory funding not be
enough. The legislation requires that the pipeline must be capable of
delivering up to 6,750 afy for the Navajo Nation, 3,076 afy for the
Hopi Tribe, and up to 350 afy for the San Juan Southern Paiute Tribe.
The remaining $3.285 billion in mandatory funding is allocated to
the Tribes for the continued development of their water rights.
Navajo Nation Water Settlement Trust Fund: $2.75 billion
for water development projects, operation and maintenance,
irrigation system and agricultural improvements, renewable
energy development, and lower Colorado River water
acquisitions.
Hopi Tribe Water Settlement Trust Fund: $508.5 for
groundwater projects, operation and maintenance, irrigation
system and agricultural improvements, and lower Colorado
River water acquisitions.
San Juan Southern Paiute Tribe Water Settlement Trust
Fund: $29.8 million for groundwater projects, operation and
maintenance, and irrigation system and agricultural
improvements.
Lastly, the bill sets June 30, 2035, as the enforceability date for
implementing the settlement. Failure to meet this deadline results in
the repeal of the legislation.
H.R. 8945 (Rep. Leger Fernandez), ``Navajo Nation Rio San Jose Stream
System Water Rights Settlement Act of 2024''
This agreement will settle all the Navajo Nation water rights
claims in the Rio San Jose Basin in New Mexico.\30\ Additionally, this
agreement describes and quantifies water rights in the Rio Puerco Basin
for the Navajo Nation. The agreement is the product of approximately 40
years of litigation and decades of negotiations. The Rio San Jose
general stream adjudication, known as New Mexico ex rel. Martinez v.
Kerr-McGee Corp., still pending in the Thirteenth Judicial District
Court for the State of New Mexico, was initiated in 1983. The Navajo
statement of claims was filed in 1987.
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\30\ Navajo Addendum to the Rio San Jose Stream System Water Rights
Local Settlement Agreement among the Pueblo of Acoma, the Pueblo of
Laguna, the Navajo Nation, the State of New Mexico, the city of Grants,
the Village of Milan, the Association of Community Ditches of the Rio
San Jose and Nine Individual Acequias and Community Ditches dated May
13, 2022.
---------------------------------------------------------------------------
The agreement is the Navajo Nation counterpart to the Local
Settlement Agreement settling the water rights claims of the Pueblos of
Acoma and Laguna (the basis of H.R. 1304). The same parties who worked
on the settlement for these Pueblos worked to develop an agreement that
resolves the Navajo Nation's claims in the same geographic area covered
by the Pueblos' Local Settlement Agreement. The agreement approved by
this legislation is written as an Addendum to the Pueblo's Settlement
Agreement.
H.R. 8945 approves the Navajo Nation's water claims quantified in
the settlement which include 2,444 afy of groundwater for the two
basins, 417 afy for livestock use, and 493 afy of additional storage
rights for stock ponds in the Rio San Jose Basin. The settlement
agreement does not address allottees' water rights. The legislation
creates a settlement trust fund, which is appropriated $223 million in
mandatory funding, for the development of water infrastructure for the
benefit of rural Navajo communities in New Mexico. The State of New
Mexico would contribute $5 million toward the settlement.
Lastly, the bill sets July 30, 2030, as the enforceability date for
implementing the settlement. Failure to meet this deadline results in
the repeal of the legislation.
H.R. 8949 (Rep. Schweikert), ``Yavapai-Apache Nation Water Rights
Settlement Act of 2024''
H.R. 8949 authorizes the Settlement Agreement for the Yavapai-
Apache Nation in Arizona.\31\ The settlement requires the Secretary of
the Interior through the Bureau of Reclamation to plan, design, and
construct a water infrastructure project which consists of two
components: the Cragin-Verde Pipeline Project and the Yavapai-Apache
Nation (YAN) Drinking Water System Project.
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\31\ Yavapai-Apache Nation Water Rights Settlement Agreement, June
26, 2024, https://republicans-naturalresources.house.gov/UploadedFiles/
1_YAN_Settlment_Agreement_Approved _by_Tribal_Council_6.26.2024.pdf
---------------------------------------------------------------------------
The Cragin-Verde Pipeline would deliver no less than 6,836.92 afy
of water from the C.C. Cragin Dam and Reservoir. The C.C. Cragin Dam
and Reservoir is part of the Salt River Project managed by the Bureau
of Reclamation. H.R. 8949 also authorizes that the capacity of the
pipeline could be increased to deliver up to an additional 1,912.18 afy
of water for use by water users in Yavapai County. The bill also
authorizes the construction of the YAN Drinking Water System Project.
This system will be capable of treating and delivering 2.25 million
gallons of water per day.
H.R. 8949 establishes two funds. The first is the Yavapai-Apache
Nation Water Settlement Trust Fund, which in total would receive $156
million in mandatory funding for environmental compliance, water
management, OM&R, and additional purposes provided for in the bill. The
second is the TU NLIINICHOH Water Infrastructure Project Implementation
Fund which would receive a total of $883.55 million in mandatory
funding for the Cragin-Verde Pipeline Project ($731.059 million) and
the YAN Drinking Water System Project Account ($152.490 million).
Lastly, the bill sets a June 30, 2035, deadline as the
enforceability date. Should the deadline be missed, all the legal
waivers and releases included as part of the settlement expire.
H.R. 8951 (Rep. Vasquez), ``Zuni Indian Tribe Water Rights Settlement
Act of 2024''
H.R. 8951 would authorize the Secretary of the Interior to sign the
fund-based water rights settlement agreement to settle claims and
litigation between the Pueblo of Zuni, the United States, and the State
of New Mexico.\32\ The settlement stems from existing claims of water
rights by Zuni and the State of New Mexico in the Zuni River stream
system in Western New Mexico. This settlement does not address water
rights claims by the Navajo Nation in the Zuni basin, as those are
still being negotiated. In addition, this agreement also does not
address non-Indian water rights in the basin.
---------------------------------------------------------------------------
\32\ Settlement Agreement to Quantify and Protect the Water Rights
of the Zuni Indian Tribe in the Zuni River Basin in New Mexico and to
Protect the Zuni Salt Lake, May 1, 2023, https://www.ose.nm.gov/Legal/
settlements_IWR.php.
---------------------------------------------------------------------------
The settlement authorized by this bill is a fund-based settlement
that would authorize $655.5 million in mandatory spending to a newly
created Zuni Tribe Water Rights Settlement Trust Account. The
settlement would also authorize $29.6 million in mandatory spending
into the newly created Zuni Tribe Operation, Maintenance, and
Replacement Trust Account. The State of New Mexico has also agreed to
provide $750,000 for development and execution of water monitoring and
$500,000 in an interest-bearing account to mitigate any negative
impacts to non-Indian domestic and livestock groundwater rights because
of new Tribal water usage. The legislation would also set aside $50
million in interest-bearing, mandatory funding for activities such as
economic water development plans, environmental compliance costs,
design costs, and establishing a water resource department by the
Tribe.
Title II of the bill pertains to protection of Zuni Salt Lake and
approximately 217,037 acres of private, Tribal trust, State, and Bureau
of Land Management lands around the lake, known as ``The Sanctuary.''
The legislation would withdraw approximately 92,364 acres of Federal
land within the Zuni Salt Lake and Sanctuary from entry, appropriation,
or disposal under public land laws for any type of mineral leasing. The
land would be managed by the Bureau of Land Management and new water
wells, grazing permits, rights-of-way leases, timber sales, and fossil
collecting would be prohibited.
The bill would also require the Secretary of the Interior to take
4,756 acres of land designated as the ``Tribal Acquisition Area'' into
trust.\33\ The land taken into trust will be subject to valid existing
rights and claims unless the holder requests earlier termination. The
Bureau of Indian Affairs will assume all benefits and obligations of
land management agency who previously administered these lands. Under
the agreement, any amounts accrued by the United States from these
lands shall be disbursed to the tribe. The legislation would also
require the Secretary to take land into trust in the future if the
tribe acquires title for any lands labeled ``potential future
acquisition areas'' on the map.\34\
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\33\ ``Legislative Map for Zuni Pueblo Water Settlement.'' Bureau
of Land Management. April 11, 2024. https://naturalresources.house.gov/
uploadedfiles/proposedzunisaltlakesanctuaryarea _april11_2024_508_1.pdf
\34\ Id.
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Lastly, the bill sets a July 1, 2030, deadline as the
enforceability date. Should the deadline be missed, all the legal
waivers and releases included as part of the settlement expire.
H.R. 8953 (Rep. Zinke), ``Crow Tribe Water Rights Settlement Amendments
Act of 2024''
H.R. 8953 amends the Crow Tribe Water Rights Settlement Act of
2010, which was enacted as part of the Claims Resettlement Act of 2010
(P.L. 111-291). This legislation appropriated $158 million in
discretionary funding to enact the settlement and an additional $302
million in mandatory funding.\35\ The law directs Reclamation to use
these funds to improve to the Crow Irrigation Project (CIP) and to
design and construct a Municipal, Rural, and Industrial (MR&I) water
system.\36\
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\35\ Congressional Research Service. Indian Water Rights
Settlements. Updated October 13, 2023. https://crsreports.congress.gov/
product/pdf/R/R44148
\36\ Statement of Bryan Newland, Assistant Secretary of the
Interior for Indian Affairs. Committee on Indian Affairs, U.S. Senate.
June 12, 2024. https://www.doi.gov/ocl/pending-legislation-77
---------------------------------------------------------------------------
The bill does not change the funding levels or existing water
rights. However, it would reform the way that funding for the CIP is
used by creating a Crow CIP Implementation Account within the Treasury.
Since the enactment of P.L. 111-291, the Crow Tribe and Interior have
relied on a private bank for appropriated funds to gain interest to
carry out rehabilitation and improvement projects; creating a dedicated
fund within Treasury removes the costs and fees associated with relying
on a private bank. In testimony before the Senate Committee on Indian
Affairs earlier this year, the Chairman of the Crow Nation, Frank
Whiteclay, noted that this would help reduce costs to the Tribe.\37\
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\37\ Testimony of Frank White Clay, Chairman, Crow Nation. U.S.
Senate Committee on Indian Affairs. June 12, 2024. https://
www.indian.senate.gov/wp-content/uploads/06.12.24-Whiteclay-
Testimony.pdf
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H.R. 8953 also repeals the section of P.L. 111-291 authorizing the
MR&I water system and creates a MR&I Projects Account the Crow Tribe
could use to ensure compliance with environmental laws, purchase on-
Reservation land with water rights, or for water infrastructure.
Additionally, the legislation states that the federal government shall
have no obligation to pay for the operation, maintenance, or
replacement of any MR&I Project.
The bill would also extend the Crow Feet Tribe's exclusive access
``to develop and market power generation on the Yellowtail Afterbay
Dam'' \38\ until 2030. At the Senate Committee on Indian Affairs
earlier this year, Chairman White Clay, referenced the importance of
this provision; recently, the Tribe ``engaged a hydro plant developer,
revised the site and engineering concerns, and intends to start
construction prior to the December 2025 deadline.'' \39\
---------------------------------------------------------------------------
\38\ P.L. 111-291
\39\ Testimony of Frank Whitecay, Chairman, Crow Nation. U.S.
Senate Committee on Indian Affairs. June 12, 2024. https://
www.indian.senate.gov/wp-content/uploads/06.12.24-Whiteclay-
Testimony.pdf
---------------------------------------------------------------------------
IV. MAJOR PROVISIONS & SECTION-BY-SECTION
H.R. 1304 (Rep. Leger Fernandez), ``Rio San Jose and Rio Jemez Water
Settlements Act of 2023''
Ratifies two separate fund-based settlement agreements:
the Rio San Jose Settlement for the Acoma and Laguna
Pueblos, and the Rio Jemez Settlement for the Jemez and Zia
Pueblos.
The Rio San Jose Settlement establishes trust funds for
both Acoma and Laguna that total $850 million in mandatory
spending.
The Rio Jemez Settlement would establish a trust fund for
both Jemez and Zia that total $490 million in mandatory
spending.
In each settlement the tribes have agreed to establish
Pueblo water codes which will govern the use of Pueblo
water rights and provide a process for those impacted by
these rights to challenge their use.
The State of New Mexico has agreed to provide over $36
million in the Rio San Jose Settlement and over $20 million
in the Rio Jemez Settlement.
H.R. 3977 (Rep. Leger Fernandez), ``Navajo-Gallup Water Supply Project
Amendments Act of 2023''
Extends the authorization for the construction of the
Navajo-Gallup Water Supply Project through FY 2029 and
increases the project's authorization to $2.175 billion.
Expands the Project service area to allow for additional
water supply.
Establishes the Navajo Nation Operations, Maintenance, and
Replacement Trust Fund and the Jicarilla Apache Nation
Operations, Maintenance, and Replacement Trust Fund.
H.R. 6599 (Rep. Leger Fernandez), ``Technical Corrections to the
Northwestern New Mexico Rural Water Projects Act, Taos Pueblo
Indian Water Rights Settlement Act, and Aamodt Litigation
Settlement Act''
Authorizes $18.5 million in authorization of
appropriations for the Taos Pueblo, Aamodt Pueblos, and the
Navajo Nation.
H.R. 7240 (Rep. Rosendale), ``Fort Belknap Indian Community Water
Rights Settlement Act of 2024''
Ratifies the Fort Belknap Indian Community water rights
settlement for irrigation, livestock, domestic use, and to
support fish and wildlife.
$415 million to rehabilitate, modernize, and expand the
Fort Belknap Indian Irrigation Project.
$119 million for the Southern Tributary Irrigation Project
and Peoples Creek Irrigation Project.
$443 million for domestic, municipal, and commercial water
supply and wastewater removal systems on the Reservation.
$300 million to restore the St. Mary Project Canal and
enlarge the Dodson South Canal.
$66 million to establish a trust fund for OM&R for Tribal
irrigators on the Reservation.
H.R. 8685 (Rep. Leger Fernandez), ``Ohkay Owingeh Rio Chama Water
Rights Settlement Act of 2024''
Approves the Settlement Agreement concerning the water
rights claims of Ohkay Owingeh Pueblo in the general stream
adjudication of the Rio Chama Stream System in New Mexico.
$745 million in mandatory funding for the Ohkay Owingeh
Water Rights Settlement Trust Fund.
The State of New Mexico would contribute $131 million
toward the fulfillment of the settlement agreement to fund
water development projects.
H.R. 8791 (Rep. Zinke), ``Fort Belknap Indian Community Water Rights
Settlement Act of 2024''
Includes the Fort Belknap Indian Community settlement
described in H.R. 7240.
$250 million in authorization of appropriations for a new
water distribution and wastewater treatment facility for
the Blackfeet Tribe.
H.R. 8920 (Rep. Fong), ``Tule River Tribe Reserved Water Rights
Settlement Act of 2024''
Secure water rights for the Tule River Tribe of California
by ratifying a 2007 agreement between the Tribe and other
parties.
Establishes and appropriates $568 million in mandatory
funds for the Tule River Indian Tribe Settlement Trust
Fund.
Transfer federal land to a trust for the benefit of the
Tule Tribe Reservation.
H.R. 8940 (Rep. Ciscomani), ``Northeastern Arizona Indian Water Rights
Settlement Act of 2024''
Settles the water rights claims of the Navajo Nation, Hopi
Tribe, and San Juan Southern Paiute Tribe in Arizona.
The Settlement Agreement resolves claims on the Colorado
River Basin, the Little Colorado River Basin, the Gila
River Basin, and aquifers and washes on tribal lands in
northeastern Arizona.
In total the bill provides $5 billion in mandatory funding
for the development of water infrastructure and related
operation, maintenance and replacement work.
+ $1.715 billion for Reclamation to construct a pipeline
to divert Colorado River water from Lake Powell to the Tribes;
+ $2.75 billion for the Navajo Nation Water Settlement
Trust Fund;
+ $508.5 million for the Hopi Tribe Water Settlement Trust
Fund; and
+ $29.8 million for the San Juan Southern Paiute Tribe
Water Settlement Trust Fund.
H.R. 8945 (Rep. Leger Fernandez), ``Navajo Nation Rio San Jose Stream
System Water Rights Settlement Act of 2024''
This agreement will settle all the Navajo Nation water
rights claims in the Rio San Jose Basin in New Mexico.
The agreement is the Navajo Nation counterpart to the
Local Settlement Agreement settling the water rights claims
of the Pueblos of Acoma and Laguna (the basis of H.R.
1304).
Creates a settlement trust fund, which is appropriated
$223 million in mandatory funding, for the development of
water infrastructure for the benefit of rural Navajo
communities in New Mexico.
The State of New Mexico would contribute $5 million toward
the settlement.
H.R. 8949 (Rep. Schweikert), ``Yavapai-Apache Nation Water Rights
Settlement Act of 2024''
H.R. 8949 approves the settlement agreement for all the
outstanding claims for water rights for the Yavapai-Apache
Nation.
It authorizes $731.06 million in mandatory funding to
construct the Cragin-Verde Pipeline and $152.49 million for
the YAN Drinking Water System Project.
H.R. 8951 (Rep. Vasquez), ``Zuni Indian Tribe Water Rights Settlement
Act of 2024''
Ratifies the fund-based Settlement Agreement between the
Zuni Indian Tribe, the United States, in its capacity as
trustee for the Zuni tribe, and the State of New Mexico in
the Zuni River basin.
Establishes a trust fund for the Zuni tribe and deposits
$655.5 million in mandatory appropriations in that fund.
The settlement also establishes a trust fund for operation
and maintenance funding of Zuni water projects and deposits
$29.6 million in that account.
Limits use of Trust Fund money to any activity related to
water resource development or water supply, as well as
watershed and ecological protection and Tribal water rights
management and administration. Operation, maintenance, and
replacement costs of any project constructed using funds
from the Trust Fund are the responsibility of the Tribe.
The State of New Mexico has agreed to contribute $750,000
for development and execution of monitoring plans and
$500,000 in an interest-bearing account to mitigate
impairment to non-Indian domestic and livestock groundwater
rights because of new Tribal water use.
Withdraws 92,364 acres of federal land, and any land
acquired by the United States in the future, within the
boundary of Zuni Salt Lake and Sanctuary is withdrawn from
all forms of entry, appropriation, or disposal under public
land laws, location, entry and patent under mining laws,
and disposition under all laws pertaining to mineral and
geothermal leasing or mineral materials.
Authorizes the Secretary of the Interior to take land
4,756 acres of land into trust for Tribe.
H.R. 8953 (Rep. Zinke), ``Crow Tribe Water Rights Settlement Amendments
Act of 2024''
Extends the Crow Tribe's exclusive authority to hydropower
development at the Yellowtail Afterbay Dam.
Creates a new `Crow Implementation Project' account within
the Department of the Treasury that will be able to gain
interest, rather than a private banking institution.
Creates a new Municipal, Rural, and Industrial (MR&I)
water system account to grant the Tribe greater discretion
or flexibility in carrying out projects.
V. COST
A formal cost estimate from the Congressional Budget Office (CBO)
is not yet available.
VI. ADMINISTRATION POSITION
The administration has testified in support of the Senate
companions to H.R. 1304, H.R. 3977, H.R. 6599, H.R. 7240, H.R. 8920,
and H.R. 8953.
The remaining bills have not received hearings; therefore, the
administration position is unknown.
VII. EFFECT ON CURRENT LAW
H.R. 3977
https://naturalresources.house.gov/uploadedfiles/h.r._3977_-
_ramseyer.pdf
H.R. 6599
https://naturalresources.house.gov/uploadedfiles/h.r._6599_-
_ramseyer.pdf
H.R. 8953
https://naturalresources.house.gov/uploadedfiles/bill-to-
law_s.4432_tester-daines_crow_water_amendments.pdf
LEGISLATIVE HEARING ON H.R. 1304, RIO SAN JOSE AND RIO JEMEZ WATER
SETTLEMENTS ACT OF 2023; H.R. 3977, NAVAJO-GALLUP WATER SUPPLY PROJECT
AMENDMENTS ACT OF 2023; H.R. 6599, TECHNICAL CORRECTIONS TO THE
NORTHWESTERN NEW MEXICO RURAL WATER PROJECTS ACT, TAOS PUEBLO INDIAN
WATER RIGHTS SETTLEMENT ACT, AND AAMODT LITIGATION SETTLEMENT ACT; H.R.
7240, FORT BELKNAP INDIAN COMMUNITY WATER RIGHTS SETTLEMENT ACT OF
2024; H.R. 8685, OHKAY OWINGEH RIO CHAMA WATER RIGHTS SETTLEMENT ACT OF
2024; H.R. 8791, FORT BELKNAP INDIAN COMMUNITY WATER RIGHTS SETTLEMENT
ACT OF 2024; H.R. 8920, TULE RIVER TRIBE RESERVED WATER RIGHTS
SETTLEMENT ACT OF 2024; H.R. 8940, NORTHEASTERN ARIZONA INDIAN WATER
RIGHTS SETTLEMENT ACT OF 2024; H.R. 8945, NAVAJO NATION RIO SAN JOSE
STREAM SYSTEM WATER RIGHTS SETTLEMENT ACT OF 2024; H.R. 8949, YAVAPAI-
APACHE NATION WATER RIGHTS SETTLEMENT ACT OF 2024; H.R. 8951, ZUNI
INDIAN TRIBE WATER RIGHTS SETTLEMENT ACT OF 2024; AND H.R. 8953, CROW
TRIBE WATER RIGHTS SETTLEMENT AMENDMENTS ACT OF 2024
----------
Tuesday, July 23, 2024
U.S. House of Representatives
Subcommittee on Water, Wildlife and Fisheries
Committee on Natural Resources
Washington, DC
----------
The Subcommittee met, pursuant to notice, at 10:17 a.m. in
Room 1324, Longworth House Office Building, Hon. Cliff Bentz
[Chairman of the Subcommittee] presiding.
Present: Representatives Bentz, Radewagen, LaMalfa, Carl;
Huffman, Hoyle, Gallego, and Porter.
Also present: Representatives Ciscomani, Crane, Fong,
Rosendale, Schweikert, Zinke; Leger Fernandez, Stansbury,
Stanton, and Vasquez.
Mr. Bentz. The Subcommittee on Water, Wildlife and
Fisheries will come to order.
Good morning, everyone. I want to welcome Members,
witnesses, and our guests in the audience to today's hearing.
Without objection, the Chair is authorized to declare a
recess of the Subcommittee at any time, and we probably will be
doing that after opening statements since we have votes
scheduled for 10:20, and then we will probably return at about
11:15.
Under Committee Rule 4(f), any oral opening statements at
hearings are limited to the Chairman and the Ranking Member. I,
therefore, ask unanimous consent that all other Members'
opening statements be made part of the hearing record if they
are submitted in accordance with the Committee Rule 3(o).
Without objection, so ordered.
I also ask unanimous consent that the Congressmen from
Arizona, Mr. Schweikert, Mr. Ciscomani, and Mr. Crane; the
Congressmen from Montana, Mr. Zinke and Mr. Rosendale; and the
Congressman from California, Mr. Fong, be allowed to
participate in today's hearing.
Without objection, so ordered.
We are here today to consider 12 legislative measures: H.R.
1304, ``Rio San Jose and Rio Jemez Water Settlements Act of
2023'', sponsored by Representative Leger Fernandez; H.R. 3977,
``Navajo-Gallup Water Supply Project Amendments Act of 2023'',
sponsored by Representative Leger Fernandez; H.R. 6599,
``Technical Corrections to the Northwestern New Mexico Rural
Water Project Act, Taos Pueblo Indian Water Rights Settlements
Act, and Aamodt Litigation Settlement Act'', sponsored by
Representative Leger Fernandez; H.R. 7240, ``Fort Belknap
Indian Community Water Rights Settlement Act of 2024'',
sponsored by Representative Rosendale; H.R. 8685, ``Ohkay
Owingeh Rio Chama Water Settlement Act of 2024'', sponsored by
Representative Leger Fernandez; H.R. 8791, ``Fort Belknap
Indian Community Water Rights Settlement Act of 2024'',
sponsored by Representative Zinke; H.R. 8920, ``Tule River
Tribe Reserved Water Rights Settlement Act of 2024'', sponsored
by Representative Fong; H.R. 8940, ``Northeastern Arizona
Indian Water Rights Settlement Act of 2024'', sponsored by
Representative Ciscomani; H.R. 8945, ``Navajo Nation Rio San
Jose Stream System Water Rights Settlement Act of 2024'',
sponsored by Representative Leger Fernandez; H.R. 8949,
``Yavapai-Apache Nation Water Rights Settlement Act of 2024'',
sponsored by Representative Schweikert; H.R. 8951, ``Zuni
Indian Tribe Water Rights Settlement Act of 2024'', sponsored
by Representative Vasquez; and H.R. 8953, ``Crow Tribe Water
Rights Settlement Amendment Act of 2024'', sponsored by
Representative Zinke.
I now recognize myself for a 5-minute opening statement.
STATEMENT OF THE HON. CLIFF BENTZ, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF OREGON
Mr. Bentz. Good morning again. I want to thank the Members
that are joining us today for their interest in these important
bills. I also want to thank the witnesses who have traveled to
Washington to be with us today.
We look forward to hearing from you.
This morning the Subcommittee will examine 12 bills
addressing proposed Indian reserved water rights settlements.
Of these, 9 would authorize Indian water rights settlements in
the states of Arizona, California, New Mexico, and Montana. The
remaining bills would amend enacted settlements. Collectively,
these bills, if enacted as proposed, would cost something over
$12 billion, the majority of which would fall within the
mandatory funding category.
Few issues in the American West are as pressing or vexing
as the escalating water crisis, and as the water in the West
continues to dry up and become more and more dear, tribal water
rights issues are becoming more and more critical.
In the landmark 1908 case of Winters v. the United States,
the Supreme Court recognized the existence of implied reserved
tribal water rights when construing treaties and other similar
legal instruments. The precise scope and extent of these rights
in any treaty are unknown until quantified by a court ruling or
an agreement ratified by Congress. When litigation is the
quantification tool, tribal claims are generally caught up in a
massive general stream of adjudication, of which I am very
familiar given the Klamath issue back in Oregon.
These adjudications are massive because to obtain
jurisdiction over Indian water rights and over the United
States as trustee to the tribes, states must adjudicate all
claims to a given river system. They may not engage in
piecemeal litigation of only Indian and Federal claims. The
result can be that there are thousands of state water rights
holders who must be joined as parties to exceedingly complex
litigation that takes too long and costs too much.
Moreover, even when such adjudications are litigated to a
conclusion and tribes win a decreed water right, such a paper
right may do little to advance tribal needs because most tribes
do not have the financial ability or the infrastructure to put
the water to use.
At the same time, growth of competing non-Indian uses has
created expectations among non-Indians that their state law
water rights were secure. In fact, many non-Indian rights are
far from secure, just as Indian rights are far from being
quantified or implemented.
Well over a century after the Winters case, we are still
grappling with the rightful recognition, quantification, and
apportionment of Indian reserved water rights. These Indian
water rights settlements have the potential to resolve long-
standing claims to water. Such quantification and agreement
would provide certainty to water users, improve cooperation
with watersheds, and pay for the development of tribal water
infrastructure.
So, where exactly is the Federal Government when it comes
to dealing with reserved rights? I would just note that the
most recent case, decided on June 22, 2023, is the Navajo
Nation case. And I can't say that it completely solved
everything. That would be the most dramatic overstatement. In
this case, the court declined to hold that the treaties impose
an affirmative obligation on the government. Such affirmative
obligations, as the court stressed, are judicially enforceable
only when expressly accepted by the government in specific
rights-creating or duty-imposing language.
In the Navajo Nation case, the court concluded that the
treaty said nothing about any affirmative duty for the United
States to secure water. This puts even more pressure on
Congress to try to figure out if these settlement agreements
are in the best interest of everyone.
The Committee recognizes that negotiated settlements are
almost always preferable to litigation, which does little to
provide water and certainty to both tribal and non-tribal
parties. But settlements, of course, require agreements and are
a challenging matter, to be sure. The Federal Government's
involvement in the Indian water rights settlement process is
somewhat guided by the principles set forth in the criteria and
procedures published back in 1990. There are 16 criteria in the
administrative rule. I will highlight several of those that I
believe serve as the basis for evaluating these settlements.
Criterion 3: settlements should be completed in such a way
that all outstanding water claims are resolved and finality is
achieved.
Criterion 4: the total cost of a settlement to all parties
should not exceed the value of the existing claims as
calculated by the Federal Government.
Criterion 5: Federal contributions to a settlement should
not exceed the Federal Government's legal exposure and costs
related to Federal trust responsibilities.
Lastly, Criterion 11 states that settlements should not
include a number of things, and here are three of them: Federal
subsidy of operations, maintenance, and repair, usually
referred to as OM&R costs, of Indian and non-Indian parties;
per capita distribution of trust funds; and exemption from
reclamation law. In other words, these settlement agreements
should not include any of these things. I expect all witnesses
before us today to be able to explain how the legislation
implementing their settlement agreement complies with these
criteria.
Without a doubt, Congress has an important role in
approving Indian water rights settlements, especially when they
involve Federal spending, the alteration of the tribe's
reserved water rights, or the waiver of sovereign immunity.
I want to once again thank the Members and their witnesses
for their time and interest today, and I look forward to a
robust discussion.
We don't have our Ranking Member. So, they have called
votes, but I think we still have enough time for one Member to
speak. I recognize Congresswoman Leger Fernandez for 5 minutes.
STATEMENT OF THE HON. TERESA LEGER FERNANDEZ, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF NEW MEXICO
Ms. Leger Fernandez. Thank you, Chair Bentz and Ranking
Member Huffman, for holding today's hearing. I want to also
thank you for your commitment to tribes and your first-hand
experience around the complexities of water issues in the West.
Today, we consider legislation that positively impacts 12
of New Mexico's 21 tribes, including five of my bills.
In New Mexico, we say, ``Agua es vida,'' water is life.
Water is also key to tribal sovereignty. I ask you to picture
our mountainous, arid landscape, where tribal and non-tribal
farms and villages hug close to the rivers of green, dependent
on the river's flow to irrigate the orchards and fields.
Drinking water systems draw from the same flow to quench tribal
and non-tribal systems, businesses, and households. These
tribes, villages, businesses, and people are interconnected
economically and hydrographically.
On the Navajo Nation, nearly one in three residents lack
access to reliable drinking water. Thousands of families haul
water for miles just to cook dinner or wash their babies. At
Laguna Pueblo, upstream diversions cause intermittent stream
flows which impact the pueblo's ability to conduct important
traditional cultural ceremonies. In the arid Southwest, there
have always been struggles around who gets to control and
access this life-giving resource. This has had profound effects
on tribes' economic vitality, health, and culture.
It also hurts non-tribal water users, their businesses,
villages, and towns. At Ohkay Owingeh, acequias several hundred
years old rely on the same water for which the pueblo has
senior water claims. Litigation to resolve these competing
claims has sapped these communities and tribes of financial
resources. The Federal Government shares in the blame for
failing to resolve and enforce claims.
To remedy this long-standing litigation and failures,
tribes and their partners and neighbors have worked diligently
to reach agreement on the water rights. In some cases, like for
Jemez and Zia pueblos, this has meant 40 years of litigation,
40 years of litigation that eventually gave way to negotiation
with neighboring towns, acequias, and the state. These
agreements were not easy to reach. tribes are giving up their
valuable senior rights in exchange for settlement and project
funds.
The tribes have acted in good faith. It is now Congress'
turn to act and approve them. The longer we wait, the more
expensive it will be. We must remember that each of these
settlements is a good deal for the United States, given the
value of what tribes are giving up and the value of the
investments that will bring benefits not only to their tribes
but to their surrounding communities. Remember that. These are
investments.
H.R. 1304, the Rio Jemez Settlement, would allow the Jemez
and Zia pueblos to construct a new water and wastewater system,
improve irrigation, and support livestock watering. The Rio San
Jose Settlement would confirm water rights for the pueblos of
Laguna and Acoma. It would increase water delivery, support
drinking and wastewater infrastructure, and improve irrigation.
Alongside H.R. 1304, H.R. 8945 would approve the Navajo
Nation's water rights in the Rio San Jose Basin to help with
wastewater treatment and water hauling. I look forward to
working with Navajo and the pueblos on technical corrections to
that bill.
H.R. 8685 would settle Ohkay Owingeh pueblo's water rights
in the Rio Chama. In addition to improving water delivery for
the pueblo, this settlement would also provide for bosque
restoration, benefiting everybody in the area and downstream. I
thank you for your forward-looking ideas about that settlement.
H.R. 3977 amends the existing Navajo-Gallup Water Supply
Project's authorization to give the project additional time and
resources to complete the drinking water system. This will
finally deliver water to families and communities on Navajo
land and across northwestern New Mexico and Gallup.
Importantly, under each of these settlements New Mexico
will provide millions of dollars for non-tribal user water
projects.
Next, H.R. 6599 provides a simple technical fix to enact
its settlements for Navajo and the Pueblos of Taos, Nambe, San
Ildefonso, and Tesuque to further support water infrastructure.
I also support Representative Vasquez's bill, H.R. 8951 for
Zuni pueblo, of which I am an original co-sponsor.
Last, Mr. Chair, I request unanimous consent to enter into
the record letters of support and testimony for these bills
from the pueblos and tribes who didn't fit at the table. And
those are from the pueblos and tribes, the state of New Mexico,
and several other supporting municipalities and acequias.
Mr. Bentz. Without objection.
[The information follows:]
RIO DE CHAMA ACEQUIA ASSOCIATION
June 29, 2024
Hon. Bruce Westerman, Chairman
House Natural Resources Committee
1324 Longworth House Office Building
Washington, DC 20515
Hon. Cliff Bentz, Chairman
Subcommittee on Water, Wildlife, and Fisheries
1324 Longworth House Office Building
Washington, DC 20515
Re: Request for hearing on H.R. 8685, Ohkay Owingeh Rio Chama Water
Rights Settlement Act of 2024
Dear Chairmen Westerman and Bentz:
The purpose of this letter is to express our complete support for
the Rio Chama water rights settlement, and we respectfully request a
hearing on this important legislation. The Rio Chama Acequia
Association (``RCAA'') is made up of 21 acequias serving more than six
hundred families and 5,000 irrigated acres located within the
mainstream section of the Rio Chama, with flows originating from the
base of Abiquiu Dam and joined by flows from Abiquiu Creek, El Rito
Creek, Rio del Oso, and Rio Ojo Caliente. Our member water users will
have their water rights and traditional uses protected by the
settlement, if enacted.
If this settlement is approved, it will be a monumental achievement
for our part of Northern New Mexico. The settlement is comprehensive
and resolves major issues on the river, including greater reliability
of supply and greater certainty of water use, and the funding from such
settlement will provide for employment opportunities and other direct
economic benefits to the parties and to the businesses and companies in
the State of New Mexico. The settlement will provide jobs on the Pueblo
and well as in the neighboring communities bringing in desperately
needed revenues to improve the lives of the people within the Rio Chama
Basin. Federal approval of the settlement will result in a win-win
situation for all the parties. This is an inclusive and comprehensive
settlement, and the residents of the Rio Chama Valley are greatly
encouraged and very supportive of this settlement. The RCAA
respectfully urges you to hold a hearing and help us get this bill
enacted into law.
Sincerely,
Darel Madrid,
President
______
CITY OF ESPANOLA
June 7, 2024
Hon. Teresa Leger Fernandez, Representative
3rd Congressional District-New Mexico
1510 Longworth House Office Building
Washington, DC 20515
Dear Representative Leger Fernandez:
The purpose of this letter is to convey the City of Espanola's
support for the Ohkay Owingeh Water Rights Settlement Act of 2024.
Espanola approved the Local Settlement Agreement for the Pueblo of
Ohkay Owingeh's Rio Chama water rights in July of 2023. That followed
several years of negotiations in which the settling parties--including
Ohkay Owingeh Pueblo, the State of New Mexico, Espanola and multiple
Rio Chama acequias--reached an agreement on water rights of the Pueblo
and non-Pueblos in the Rio Chama Stream System as well as on water
projects to enhance their water uses. This settlement eliminates long
and costly litigation with uncertain outcomes. Funding to be received
by Espanola under the agreement will provide the City with additional
wells to protect the City' s long-term water security. The settlement
also provides protection from challenges by others in the Chama Stream
System to the City's water rights.
As a center of social and commercial activity in the Espanola
Valley, the City of Espanola has a vital interest in providing a
reliable, safe and sustainable water supply to meet the needs of the
community. Water is a scarce and valuable resource that requires
protection and needs to be used in a manner that recognizes the unique
historic, social, cultural, demographic and geographic characteristics
of both Pueblo and non-Pueblo water users. Water resources are being
affected by climate change and the drought conditions that face the
Southwest. It is vitally important that this resource be used to the
extent possible to satisfy the rights recognized by the parties in the
settlement. The successful resolution of the settlement is highly
desirable and, after years of negotiations, achieves a final
determination of the claims of Ohkay Owingeh on the Rio Chama Stream
System. Implementation of the settlement agreement, as provided for by
the Settlement Act, will help to ensure a sustainable supply of water
to meet the needs of the residents of Espanola and the entire Espanola
Valley.
The Aragon water rights adjudication was originally filed in 1969
to resolve water right claims on the Rio Chama. The negotiated
settlement facilitates greater reliability of supply and greater
certainty of water use. Funding provided for under the settlement
provides for employment opportunities and other direct economic
benefits to the parties and to the businesses and companies in the
State of New Mexico. The settlement will support jobs on the Pueblo and
in the neighboring communities, including Espanola, bringing in needed
revenues to improve the lives of the people within the Rio Chama Stream
System.
The Local Settlement Agreement for Ohkay Owingeh's Rio Chama water
rights is the result of the tireless efforts of the settling parties to
negotiate a settlement that is in the best interest of all of the
parties. The City of Espanola fully supports the passage of the Ohkay
Owingeh Water Rights Settlement Act of 2024.
Sincerely,
Peggy Sue Martinez,
Mayor Pro Tem
______
Statement for the Record
Tanya Trujillo
New Mexico Deputy State Engineer
on H.R. 1304, H.R. 8685, H.R. 3977, H.R. 6599, H.R. 8940, H.R. 8945,
and H.R. 8951
H.R. 1304, Rio San Jose and Rio Jemez Water Settlements Act of 2023
Mr. Chairman Bentz, Vice Chair Kiggans, and members of the
Committee, I am Tanya Trujillo, New Mexico Deputy 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 House of Representatives Bill
1304, the Rio San Jose and Rio Jemez Water Settlements Act of 2023.
H.R. 1304 is comprised of the Pueblos of Acoma and Laguna Water
Rights Settlement Act (Title I) and the Pueblos of Jemez and Zia Water
Rights Settlement Act (Title II). House Bill 1304 was introduced on
March 1, 2023, by sponsor Representative Teresa Leger Fernandez with
co-sponsors Representative Melanie Stansbury and Representative Gabe
Vasquez. This bill seeks to authorize, ratify and confirm two water
rights settlements involving four Pueblos in the State of New Mexico.
The companion Senate Bill 595 was introduced and heard in the Senate
Indian Affairs Committee in March of 2023 and reported favorably
without amendment. All parties involved continue to advocate for
enactment of the legislation and implementation of the 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 legislation offers a historic opportunity to authorize
funding to secure and develop water sufficient to support the permanent
homeland for the Pueblos of Acoma and Laguna in the Rio San Jose Stream
System and the Pueblos of Jemez and Zia in the Jemez River Basin. At
the same time, this legislation protects the scarce water supplies and
existing water uses in both stream systems.
The legislation will resolve the water rights claims of these
Pueblos by authorizing, ratifying and confirming two comprehensive
settlement agreements among the State, the Pueblos, surrounding
municipalities, and historic acequias and community ditches. These
settlements represent the culmination of decades of litigation and
subsequent negotiations among the signatories, Navajo Nation, and the
United States as trustee, and would not have been possible without
their support and active participation in the negotiations.
Title I: Pueblos of Acoma and Laguna Water Rights Settlement Act of
2023
Title I of H.R. 1304 seeks to confirm the settlement agreement
among the State, the Pueblos of Acoma and Laguna, Navajo Nation, the
United States as trustee, the City of Grants, the Village of Milan, and
the Association of Community Ditches of the Rio San Jose and its nine
area acequias and community ditches. House of Representative Bill 8945,
the Navajo Nation Rio San Jose Stream System Water Rights Settlement
Act of 2024, is also being heard today and is an addendum to this
settlement agreement among these same parties.
The settlement resolves the water rights claims of the Pueblos of
Acoma and Laguna within the Rio San Jose Stream System and provides
funding for much needed water supply infrastructure. These claims arise
from the adjudication suit filed by the State in 1983 (New Mexico ex
rel. Martinez v. Kerr-McGee Corp., Nos. D-1333-CV-1983-00190 and D-
1333-CV-1983-00220 (consolidated) (N.M. 13 Jud. Dist. Ct)). The
settlement represents the end of forty years of litigation and
negotiation, and offers the desired opportunity to resolve long-
standing concerns over the use of scarce water supplies in the Rio San
Jose Stream System.
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-Tribal water 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-Tribal 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 and farmers, certain 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.
Authorizing the settlement will avoid the uncertainty and expense
of protracted litigation regarding the Pueblos' senior water rights
claims. 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 and ensure water security for everyone.
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, the Pueblos have agreed to give up their
right to make a priority call on junior non-Pueblo water rights
existing prior to the settlement enforcement date, which provides
security to all water rights holders in the region. The settlement also
provides for the establishment of district-specific management tools to
monitor and protect water resources and existing valid water uses in
the entire Rio San Jose Stream System, putting this region at the front
of efforts to create resiliency in water use not only in the present,
but also into the future.
The proposed settlement will also provide for federal funding for
the development of alternative water sources for the Pueblos and state
funding for much needed infrastructure improvements for non-Tribal
settling parties. The settlement ensures that non-Tribal water users
will be able to continue using their water rights as they have done in
the past and does not contain any new restrictions on other existing
water users. Importantly, authorizing this fund-based settlement
provides the Pueblos flexibility to determine the scope and design of
future projects and infrastructure.
For the Pueblos, the legislation provides Federal funding for
alternative water supplies, water infrastructure, water rights
management and administration, watershed protection, support of
agriculture, water-related community welfare and economic development
in the amount of $850 million.
The Settlement provides that the State will seek appropriations to
support projects for the signatory acequias and municipalities. The
Acequias, the City of Grants and the Village of Milan would receive $36
million from the State to protect against future impairment and 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.
Title II: The Pueblos of Jemez and Zia Water Rights Settlement Act of
2023
Title II confirms 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 acequias
of the Coalition. The parties have reached an agreement after nearly
forty years of litigation and intensive settlement negotiations. 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.
The Jemez River Stream System 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. The
Pueblos and non-Pueblo acequias rely on the river for traditional
irrigation practices that have existed since long before New Mexico
statehood. 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.
The settlement agreement ratified by H.R. 1304 will resolve the
water rights claims of the Pueblos of Jemez and Zia, and provide
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 are proceeding 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 all non-Pueblo claimants have been adjudicated, and the
Pueblos have the only claims remaining in the Basin.
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. 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 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. In order to preserve the cooperative administration of water
among the water users in the stream system, the Pueblos have agreed to
give up their right to request enforcement of their senior priority
against other signatories and water users that are a party to the 1996
Shortage Sharing Agreement.
The settlement further provides for alternative administration
between the two Pueblos and non-Pueblo water users to supplement
surface water supply during periods of low flow and a groundwater
augmentation project that will benefit all water users, including ten
upstream acequias which will no longer be subject to curtailment from
Pueblo priority calls. By providing a critical buffer against climate
change's effects 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.
As a fund-based settlement, federal funding in the amount of $490
million is contemplated for water and wastewater infrastructure
improvements, watershed protection, water-related projects for
community welfare and economic development, and costs relating to
implementation of the settlement. The State has committed to seeking
funding for 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. The State will also
seek appropriations for a mitigation fund for $500,000 to protect
against future impacts to domestic and livestock wells and provide
funding for necessary administrative needs in the Jemez River Basin.
Finally, the Settlement also provides for the establishment of a water
master district with the goal of protecting water resources in the
Jemez River Basin for future generations while allowing all parties to
fully exercise their water rights.
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.
Conclusion
Mr. Chairman Bentz, Vice Chair Kiggans, and members of the
Committee, the State of New Mexico asks you to support H.R. 1304. If
approved, this legislation will create 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. 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 surrounding communities in both
stream systems. 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. Importantly, authorizing this fund-based settlement provides the
Pueblos flexibility to determine the scope and design of future
projects and infrastructure.
New Mexico's water issues are dire, and they will only get worse
with climate change. The State of New Mexico enthusiastically supports
this legislation and believes H.R. 1304 is crucial to addressing
critical water needs in some of the most water-stressed communities in
the state. Relief for these communities cannot come soon enough.
I thank you for your consideration of this issue and stand ready to
provide any support necessary to encourage the passage of this critical
legislation.
H.R. 8685, Ohkay Owingeh Rio Chama Water Rights Settlement Act of 2024
Mr. Chairman Bentz, Vice Chair Kiggans, and members of the
Committee, I am Tanya Trujillo, New Mexico Deputy 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 House of Representatives Bill
8685, the Ohkay Owingeh Rio Chama Water Rights Settlement Act of 2024.
H.R. 8685 will resolve Ohkay Owingeh's water rights claims in the
Rio Chama Stream System by authorizing, ratifying, and confirming a
comprehensive agreement among the State, Ohkay Owingeh, the City of
Espanola, the Asociacion de Acequias Nortenas de Rio Arriba, the Rio de
Chama Acequias Association, La Asociacion de las Acequias del Rio
Vallecitos, Tusas, y Ojo Caliente, El Rito Ditch Association,
representing 80 acequias and community ditches. This legislation offers
a historic opportunity to authorize funding for Ohkay Owingeh to secure
and develop water sufficient to support the Pueblo's needs, while also
protecting scarce water supplies, existing water uses, and acequia
culture in the heart of northern New Mexico.
For centuries, Ohkay Owingeh irrigated along the banks and fertile
lands along the river near the confluence of the Rio Chama and Rio
Grande. Over the last century, the construction of large reservoirs,
the channelization of the river, increased upstream uses, and climate
change have greatly reduced the Rio Chama water supply.
There are more than 80 acequias in the Rio Chama Stream System. The
three oldest acequias in New Mexico divert from the Rio Chama just
outside Ohkay Owingeh's grant boundary, but Ohkay Owingeh has time
immemorial water rights, making it the most senior water user in the
basin. The Acequias and the Pueblo are all suffering from diminished
surface water supply and Ohkay Owingeh often struggles to receive
enough water to farm their land at the bottom of the Stream System.
Litigation over the Rio Chama water rights of Ohkay Owingeh has
been ongoing for nearly thirty years. The federal court adjudication
was filed in 1969 (State of New Mexico, ex rel. State Engineer v.
Aragon, 69-cv-07941 (D.N.M.)). Recognizing the need for cooperation
among the water users in the Stream System and the limited water
resources available, the parties structured this settlement to protect
existing uses and scarce resources.
The Pueblo, the State, and the Acequias developed an administrative
agreement to share and curtail water in times of shortage in order to
increase wet water supply and extend the irrigation season. The Pueblo
has agreed to give up its right to make a priority call on junior non-
Pueblo water users, providing security to all water rights holders in
the region. Additionally, the legislation will provide Ohkay Owingeh
with crucial funding for projects that will restore the culturally
significant Rio Chama Bosque, which will support the health of the
river and the ecosystem as a whole.
As a fund based settlement, Ohkay Owingeh is seeking federal
funding in the amount of $818.3 million for purposes related to
restoring and maintaining the Rio Chama and Rio Grande bosques,
developing water supply and wastewater infrastructure, acquiring water
rights or water supplies, and managing and administering Pueblo Water
Rights. Importantly, authorizing this fund-based settlement provides
the Pueblo flexibility to determine the scope and design of future
projects and infrastructure.
The State of New Mexico has committed to seek State funding in the
amount of $98.5 million to the Acequias for projects and infrastructure
needs, and $32 million to the City of Espanola for the development of
safe drinking water production wells.
Mr. Chairman Bentz, Vice Chair Kiggans, and members of the
Committee, the State of New Mexico asks you to support H.R. 8685. If
approved, this legislation will create a mechanism for cooperation and
coordination among Ohkay Owingeh and the State regarding water rights
administration, thereby avoiding jurisdictional conflicts and allowing
for comprehensive administration across the stream system. The funding
authorized by the Settlement Act will contribute to Ohkay Owingeh's
water security and provide significant economic benefits and employment
opportunities to the Pueblo and surrounding communities. 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 New Mexico contractors. The State of New
Mexico enthusiastically supports this legislation and believes H.R.
8685 is a key tool in addressing critical water needs of Ohkay Owingeh
and protecting the way of life in northern Mexico for generations to
come.
I thank you for your consideration of this issue and stand ready to
provide any support necessary to encourage the passage of this critical
legislation.
H.R. 3977, Navajo-Gallup Water Supply Project Amendments Act of 2023
H.R. 6599, Technical Corrections to the Northwestern New Mexico Rural
Water Projects Act, Taos Pueblo Indian Water Rights Settlement Act, and
Aamodt Litigation Settlement Act
H.R. 8940, Northeastern Arizona Indian Water Rights Settlement Act of
2024
Mr. Chairman Bentz, Vice Chair Kiggans, and members of the
Committee, I am Tanya Trujillo, New Mexico Deputy 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 regarding H.R. 3977, Navajo-Gallup Water Supply
Project Amendments Act of 2023; H.R. 6599, Technical Corrections to the
Northwestern New Mexico Rural Water Projects Act, Taos Pueblo Indian
Water Rights Settlement Act, and Aamodt Litigation Settlement Act; and
H.R. 8940, Northeastern Arizona Indian Water Rights Settlement Act of
2024.
The State of New Mexico supports the resolution of Indian Water
Rights claims through negotiated settlements, including the claims of
the Taos, Nambe, Pojoaque, Tesuque and San Ildefonso referenced in H.R.
6599, and the claims of the Navajo Nation in New Mexico referenced in
H.R. 3977 and H.R. 6599 and the claims of the Navajo Nation, the Hopi
Tribe and the San Juan Southern Paiute Tribe in Arizona referenced in
H.R. 8940. The State fully supports the language in H.R. 3977 and H.R.
6599 and requests the Committee to move forward with those bills as
quickly as possible. New Mexico has participated in recent discussions
with the Navajo Nation regarding amendments to H.R. 8940 that will be
necessary to ensure New Mexico's interests can be protected and details
related to New Mexico's position regarding H.R. 8940 are stated below.
A. Implications for New Mexico's 1948 Compact Apportionment
Pursuant to the 1948 Upper Colorado River Basin Compact, New Mexico
is entitled to a total quantity of consumptive use per annum of 11.25
percent of the water apportioned to the States of the Upper Division by
the 1922 Colorado River Compact. New Mexico's Upper Basin water use is
currently about half of its apportionment. Most of New Mexico's plans
to develop its apportionment in the San Juan River Basin are for tribal
water development that has been authorized by Congress pursuant to the
Indian water rights settlements between the State and the Jicarilla
Apache Nation and the State and the Navajo Nation. New Mexico is
proposing amendments to H.R. 8940 to eliminate the possibility that
this settlement could negatively affect New Mexico's ability to
implement the previously approved settlements and otherwise utilize and
protect New Mexico's Colorado River Basin apportionment.
B. Implications for ESA Compliance in New Mexico
The San Juan River is designated as critical habitat for the
Colorado pikeminnow and the razorback sucker from Farmington, New
Mexico to Lake Powell. The U.S. Bureau of Reclamation releases water
from Navajo Reservoir as needed throughout the year to ensure that
certain target flows beneficial to the endangered fish are met daily.
Since 1992, the releases have occurred in coordination with the San
Juan River Basin Recovery Implementation Program. Under the Endangered
Species Act, these environmental flows provide ESA coverage for all
existing diversions below Navajo Reservoir, including all diversions in
New Mexico. New Mexico is proposing to amend H.R. 8940 to ensure that
the ESA releases, in conjunction with diversions of water to support
the settlement, do not have a negative effect on the amount of water
available for New Mexico to use from its Colorado River Basin
apportionment.
C. Implications for Water Use and Storage in New Mexico
Amendments will be required to protect storage rights for New
Mexico parties in Navajo Reservoir and Frank Chee Willetto, Sr.
Reservoir. The proposed settlement between the Nation and Arizona calls
for storing the Navajo Nation's water, including portions of the Navajo
Nation's Lower Basin Colorado River Water, in those two reservoirs in
New Mexico. New Mexico is proposing an amendment, so that the new
storage authorization does not adversely impact the existing New Mexico
water users who benefit from storage in those reservoirs. New Mexico is
also proposing an amendment to ensure that any evaporation or transit
losses associated with the Navajo Nation's Lower Basin Colorado River
Water stored in New Mexico would be accounted for against Arizona's
apportionment.
D. Initial Areas of Proposed Amendments from New Mexico
Adding language addressing conditions for storage and
diversion of water in New Mexico.
Ensuring that the State of New Mexico, acting through the
New Mexico Interstate Stream Commission and/or the State
Engineer will be able to issue permits and approve
agreements for storage, diversion, delivery and operations
that will have effects on New Mexico water uses.
Adding language to protect New Mexico's Compact
apportionment and ensure further development of that
apportionment.
Adding language regarding accounting for water that is
diverted from sources in New Mexico for use in Utah and/or
Arizona including coverage of losses.
Ensuring consistency with applicable provisions in P.L.
111-11.
Limiting the use, leasing or transfer of water apportioned
to the State of New Mexico without agreement of the State
of New Mexico and issuance of appropriate permits.
Conclusion
Mr. Chairman Bentz, Vice Chair Kiggans, and members of the
Committee, the State of New Mexico asks you to support H.R. 3977 and
H.R. 6599. The State of New Mexico also asks you to support H.R. 8940
with the inclusion of the amendments as referenced in this testimony
and further developed in coordination with the Navajo Nation and other
parties to the Arizona settlement. New Mexico appreciates the
opportunity to provide this testimony and coordinate with the Committee
on these bills as they move forward.
I thank you for your consideration and stand ready to provide any
support necessary to encourage the passage of these critical pieces of
legislation.
H.R. 8945, Navajo Nation Rio San Jose Stream System Water Rights
Settlement Act of 2024
Mr. Chairman Bentz, Vice Chair Kiggans, and members of the
Committee, I am Tanya Trujillo, New Mexico Deputy 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 House of Representatives Bill
8945, the Navajo Nation Rio San Jose Stream System Water Rights
Settlement Act of 2024.
The Settlement Act we ask you to support today is the Navajo Nation
companion to H.R. 1304, the Rio San Jose and Rio Jemez Water
Settlements Act of 2023, and involves those same parties: the State of
New Mexico, Navajo Nation, the Pueblos of Acoma and Laguna, the United
States as trustee, the City of Grants, the Village of Milan, and the
Association of Community Ditches of the Rio San Jose and its nine area
acequias and community ditches. This settlement resolves the water
rights claims of Navajo Nation within the region and provides funding
for much needed infrastructure and creates administrative safeguards to
protect for non-Tribal water users.
These claims arise from the adjudication suit filed by the State in
1983 (New Mexico ex rel. Martinez v. Kerr-McGee Corp., Nos. D-1333-CV-
1983-00190 and D-1333-CV-1983-00220 (consolidated) (N.M. 13 Jud. Dist.
Ct)). The settlement represents end of forty years of litigation and
negotiation and offers the desired opportunity to resolve long-standing
concerns over the use of scarce water supplies in the Rio San Jose
Stream System.
The agreement confirmed by H.R. 8945 is written as an Addendum to
the Local Settlement Agreement resolving the Pueblo of Acoma and
Laguna's water rights claims in the Rio San Jose Stream System. These
fully compatible water rights settlement agreements, when approved by
Congress, will provide a comprehensive settlement of tribal claims in
the Rio San Jose Stream System and ensure water sources for many Navajo
communities that rely on hauling to meet household needs.
Authorizing the settlement will avoid the uncertainty and expense
of protracted litigation regarding Navajo Nation's water rights claims.
If the rights of the Nation were litigated to their conclusion, the
only way to increase the flows of the Rio San Jose for the benefit of
the Nation would be to shut off junior 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 Navajo
Nation and communities in desperate need. Federal funding would be used
for construction of a regional water supply to Navajo Nation
communities, including wastewater development, chlorination stations,
hauling stations and other water infrastructure projects. This influx
of federal money and projects in turn boosts the New Mexico economy and
provides stability for all communities in the area. The legislation
offers a historic opportunity to authorize funding to secure and
develop groundwater sufficient to support the needs of nine Navajo
Chapters in the Rio San Jose Basin (Baca/Prewitt, Casamero Lake,
Crownpoint, Littlewater, Mariano Lake, Ramah, Smith Lake, Thoreau,
Tohajiilee), and the seven chapter communities in the Rio Puerco Basin
(Tohajiilee, Torreon, Ojo Encino, Pueblo Pintado, Whitehorse Lake,
Counselor, Littlewater).
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. Today,
Navajo Nation, the Pueblos of Acoma and Laguna, the City of Grants, the
Village of Milan, various Acequias and farmers, and industrial users
continue to rely on water from the Rio San Jose Stream System,
including 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.
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 Nation to develop alternative
sources of water based on availability, hydrologic assessment, and
community need. Additionally, the Nation has agreed to give up its
right to make a priority call on junior non-Tribal water rights,
providing security to all water rights holders in the region. The
settlement also provides for the establishment of district-specific
management tools to monitor and protect water resources and existing
valid water uses in the entire Rio San Jose Stream System, putting this
region at the front of efforts to create resiliency in water use not
only in the present, but also into the future.
New Mexico's water issues are dire, and they will only get worse
with climate change. The State of New Mexico enthusiastically supports
this legislation and believes H.R. 8945 is crucial to addressing
critical water needs in some of the most water-stressed communities in
the state. As a fund-based settlement, the Nation is seeking federal
funding in the amount of $244 million. The Acequias will receive $3
million from the State to protect against future impairment and improve
the efficiency of their ditches and conservation in the overall stream
system. This approach also prioritizes Tribal sovereignty and self-
determination by ensuring that the Nation is able to make decisions
based on the current and future interests of their communities, while
also considering water use in the neighboring non-Tribal communities.
Mr. Chairman Bentz, Vice Chair Kiggans, and members of the
Committee, the State of New Mexico asks you to support H.R. 8945. If
approved, this legislation will create a mechanism for cooperation and
coordination among Navajo Nation and the State regarding water rights
administration, thereby avoiding jurisdictional conflicts and allowing
for comprehensive administration across the stream system. The funding
authorized by the Settlement Act will contribute to Navajo water
security and provide significant economic benefits and employment
opportunities to Navajo Nation and surrounding communities in both
stream systems. 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. Importantly, authorizing this fund-based settlement provides the
Navajo Nation flexibility to determine the scope and design of future
projects and infrastructure.
I thank you for your consideration of this issue and stand ready to
provide any support necessary to encourage the passage of this critical
legislation.
H.R. 8951, Zuni Indian Tribe Water Rights Settlement Act of 2024
Mr. Chairman Bentz, Vice Chair Kiggans, and members of the
Committee, I am Tanya Trujillo, New Mexico Deputy 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 House of Representatives Bill
8951, the Zuni Indian Tribe Water Rights Settlement Act of 2024.
H.R. 8951 will resolve the Zuni Tribe's water rights claims in the
Zuni River Stream System by authorizing, ratifying, and confirming a
comprehensive agreement between the State and the Zuni Tribe. The
settlement represents the culmination of over 25 years of litigation
and subsequent negotiations among the signatories and the United States
as trustee, and would not have been possible without their support and
active participation in the negotiations.
The Zuni Tribe Reservation is at the very end of the Zuni River
Stream System and one of the most remote and water-scarce river basins
in New Mexico. The Settlement Agreement will not only determine the
water rights of the Zuni Tribe, but will provide financial resources to
develop a sustainable water supply to satisfy the Tribe's water needs,
today and into the future, while minimizing adverse impacts to other
water users in the basin.
The Settlement Agreement provides for administrative protections
for the non-Tribal water users in the basin, the critically endangered
bluehead sucker fish, and importantly, the Zuni Salt Lake, a culturally
sacred site for Zuni and many other Pueblos, Tribes, and Nations in the
Southwest. The State of New Mexico has committed to seek $1.2 million
in funding for costs related to monitoring the Critical Protection
Areas and Zuni Salt Lake, mitigation funding to protect against future
impacts to domestic and livestock wells and necessary administrative
needs in the Zuni River Basin with the goal of protecting water
resources in the Zuni River Stream System for future generations while
allowing all parties to exercise their water rights.
As a fund-based settlement, the Zuni Tribe is seeking federal
funding in the amount of $749 million for water related projects,
including irrigation infrastructure improvements, water and wastewater
infrastructure improvements, watershed protection, water-related tribal
community welfare and economic development, and costs relating to
implementation of the Agreement. Importantly, this legislation will
provide the Tribe flexibility to determine the scope and design of
future projects critical to obtain a reliable supply of water and
create water security for the future.
Mr. Chairman Bentz, Vice Chair Kiggans, and members of the
Committee, the State of New Mexico asks you to support H.R. 8951. If
approved, this legislation will create a mechanism for cooperation and
coordination among the Zuni Tribe and the State regarding water rights
administration, thereby avoiding jurisdictional conflicts and allowing
for comprehensive administration across the stream system. The funding
authorized by the Settlement Act will contribute to the Zuni Tribe's
water security and provide significant economic benefits and employment
opportunities to the Tribe and surrounding communities. There will also
be broader cultural and ecological benefits from the cooperative
management components of the agreement that underscore the commitment
of both the State and the Tribe to protect and restore precious
resources in the Zuni River Stream System. The State of New Mexico
enthusiastically supports this legislation and believes H.R. 8951 is
key to providing the Zuni Tribe with sufficient water to satisfy its
needs and protect the Zuni Salt Lake, natural springs, and sacred sites
for generations to come.
I thank you for your consideration of this issue and stand ready to
provide any support necessary to encourage the passage of this critical
legislation.
______
ALL PUEBLO COUNCIL OF GOVERNORS
RESOLUTION NO. APCG 2024-02
URGING NEW MEXICO CONGRESSIONAL DELEGATION TO SUPPORT AND APPROVE
PUEBLOS WATER RIGHTS SETTLEMENTS
WHEREAS, the All Pueblo Council of Governors (APCG) is comprised of the
New Mexico Pueblos of Acoma, Cochiti, Isleta, Jemez, Laguna, Nambe,
Ohkay Owingeh, Picuris, Pojoaque, San Felipe, San Ildefonso, Sandia,
Santa Ana, Santa Clara, Santo Domingo, Taos, Tesuque, Zia, and Zuni and
one Pueblo in Texas, Ysleta del Sur, each having sovereign authority to
govern their own affairs; and
WHEREAS, the purpose of the All Pueblo Council of Governors is to
advocate, foster, protect, and encourage the social, cultural, and
traditional well-being of the Pueblo Nations; and
WHEREAS, the 20 Pueblos possess governmental authority and sovereignty
over their lands and over the protections of their languages, cultures,
and traditions; and
WHEREAS, the Pueblos have occupied the southwest since time immemorial
with the first documented Tribal leadership meeting occurring in 1598
under the Spanish crown; and
WHEREAS, prior to the founding of the United States, the well-
established agricultural Pueblo communities' water uses were not only
recognized under both Spain and Mexico it was also protected; and
WHEREAS, the United States asserted sovereign authority over the
Pueblos in New Mexico under the Treaty of Guadalupe Hildalgo, which
protected rights recognized by prior sovereigns including the Pueblos;
and
WHEREAS, increased water uses by non-Indians for irrigation, dam
construction, and diversion of water have severely reduced the Pueblos'
access to current water supplies; and
NOW THEREFORE, BE IT RESOLVED, the All Pueblo Council of Governors
contends Congress to uphold its solemn obligation and fulfill the
federal trust responsibility to the Pueblos in securing water rights
settlements; and
BE IT FINALLY RESOLVED, the All Pueblo Council of Governors urges the
New Mexico Congressional Delegation to fully support and authorize the
passage of the Pueblos' water rights settlements. Specifically, the:
S. 4896--Rio San Jose and Rio Jemez Water Settlement Act
of 2023
S. 4898--Pueblos of Acoma and Laguna Water Rights
Settlement Act of 2022
S. 4505, H.R. 8685--To approve the settlement of water
rights claims of Ohkay Owingeh in the Rio Chama Stream
System, to restore the Bosque on Pueblo Land in the State
of New Mexico, and for other purposes
Pueblo of Zuni--Zuni Water Rights Settlement Act and Salt
Lake Protection Act (Legislation yet to be introduced)
CERTIFICATION
We, the undersigned officials of the All Pueblo Council of
Governors hereby certify that the foregoing Resolution No. APCG 2024-02
was considered and adopted at a duly called council meeting held on the
27th day of June 2024, and at which time a quorum was present and the
same was approved by a vote of 18 in favor, 0 against, 0 abstain, and 2
absent.
ALL PUEBLO COUNCIL OF GOVERNORS
By:
James R. Mountain, APCG Chairman
ATTEST:
Governor Arden Kucate, APCG Secretary
______
Statement for the Record
Peter Madalena
THE PUEBLO OF JEMEZ
on H.R. 1304, Rio San Jose and Rio Jemez Water Settlements
Act of 2023
My name is Peter Madalena. I have the honor of serving as Governor
of the Pueblo of Jemez. On behalf of our Pueblo, I thank you Chairman
Bentz, Ranking Member Huffman, and distinguished members of the
Subcommittee for Water, Wildlife, and Fisheries for this opportunity to
provide our written testimony on the Rio San Jose and Rio Jemez Water
Settlements Act (H.R. 1304). The Pueblo extends a special greeting and
our respects to our Congresswoman, the Honorable Teresa Leger
Fernandez. We thank her for sponsoring this legislation. We also extend
special greetings and our gratitude to Congresswoman Melanie Stansbury,
who is of course a member of this Subcommittee and a cosponsor of the
bill, as well as to Congressman Gabe Vasquez for his co-sponsorship. We
also thank our two Senators, Martin Heinrich and Ben Ray Lujan for
sponsoring companion legislation in the Senate. It is our honor to have
the full support of the New Mexico congressional delegation, as well as
the support of our Governor, the New Mexico State Engineer, and our
non-Indian partners in our Settlement Agreement.
For the reasons discussed below, enactment of legislative language
to implement our water rights settlement is critical to the health and
welfare of the Jemez people, and the preservation of our cultural and
spiritual values. It is also critical to the health and welfare of non-
Indian users of Jemez River water, and to the continued relationships
that bind our communities together. It took us nearly forty years to
negotiate this settlement. In the nearly two years since our
legislation was originally introduced in the 117th Congress, the
draught conditions that plague Pueblo and non-Indian communities alike
have worsened. Water users are not getting enough water and are losing
their crops. Irrigation rotations are being implemented forcing some
farmers to sacrifice their alfalfa and hay fields to make water
available to farmers growing crops like corn, chili, melons and other
vegetables for consumption. For these reasons we desperately need your
help. We are grateful that H.R. 1304 will be the subject of this
Subcommittee hearing today, and we urge the full Committee to take up
our legislation and report it out of Committee with all due speed.
Summary
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 our Pueblo. In 1983, the United States
brought litigation to protect Pueblo water rights in the Jemez River
Basin in a case known as U.S. v. Abousleman. For nearly forty years,
the Jemez Pueblo engaged in good faith negotiations, investing an
incredible amount of time and resources to find common ground with our
non-Indian neighbors. Finally, in 2022 we were able to reach a
settlement that meets the needs of our Pueblo and the Pueblo of Zia,
non-Indian water users, and the State of New Mexico. But this hard-won
Settlement Agreement is meaningless without federal implementing
legislation.
The Pueblo of Jemez is not a wealthy Tribe; we do not have a casino
or vast energy resources. For us, access to a sustainable water supply
is the only path to our long-term health and stability, and cultural
preservation. If implemented, the Settlement Agreement will protect our
access to water to sustain our agricultural practices and livestock
needs, and to provide water for current domestic, commercial, municipal
and industrial use. Implementation of the Settlement will provide
funding for the construction of critical wells for both Jemez and Zia
to obtain groundwater to reduce reliance on surface water from the
Jemez River. Access to the water made available by these wells will
help avoid conflicts between the Pueblos and non-Indian water users
over access to increasingly scarce surface water, and so will protect
and strengthen relationships among the community of water users in the
Jemez River Basin.
In addition, the Settlement Agreement projects will provide state-
wide economic benefits for non-tribal businesses that will be involved
in the Pueblo's projects. Most importantly for the Pueblo, these
projects will bring revenues into the tribal government from
construction projects, and bring desperately needed income into Pueblo
households, helping to decrease the Pueblo's 40% unemployment rate. We
are proud to underscore that the Settlement Agreement also serves the
crucial needs of our neighbors, as it 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 community.
Only with your help can we actually secure our water rights, and in
turn secure the future for our Pueblo members, accommodate the future
growth of our population, realize the full economic potential of our
tribal homelands, and preserve ancient agricultural and other practices
critical to our cultural survival. We ask that the House Natural
Resources Committee and its Water, Wildlife and Fisheries Subcommittee
do everything in its power to move H.R. 1304 swiftly toward passage.
Brief Background of the Pueblo and History of Jemez
Since time immemorial 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% of our members. We are a federally recognized Indian
tribe and one of the 20 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.
Jemez Pueblo has a unique history, one that is 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 17 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 17 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. Sec. Sec. 5301-5423.
Pueblo Members
The number of our enrolled tribal members as of July 19, 2024 is
3,952. 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 acre-feet 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 toward 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% 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% 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% 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%
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 groundwater 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 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 an incredible amount 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 toward passage of H.R. 1304, 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.
______
CITY OF GALLUP
Gallup, New Mexico
July 15, 2024
Hon. Bruce Westerman, Chair
Hon. Raul Grijalva, Ranking Member
House Natural Resources Committee
1324 Longworth House Office Building
Washington, DC 20515
Hon. Harriet Hageman, Chair
Hon. Teresa Leger Fernandez, Ranking Member
Subcommittee on Indian and Insular Affairs
1324 Longworth House Office Building
Washington, DC 20515
Hon. Cliff Bentz, Chair
Hon. Jared Huffman, Ranking Member
Subcommittee on Water, Wildlife and Fisheries
1324 Longworth House Office Building
Washington, DC 20515
Dear Distinguished Members of the House Natural Resources Committee
Leadership:
We write to express our enthusiastic support for the prompt passage
of H.R. 3977, the Navajo-Gallup Water Supply Project Amendments Act of
2023. The Act is of immense and historic consequence to the Navajo
Nation and Navajo people, to the City of Gallup, New Mexico, and to
McKinley County, New Mexico. Its passage will mark a turning point in
the lives of hundreds of thousands, ensuring the stability and vitality
of their homes and communities, and their futures.
The Act honors and effectuates the United States' trust
responsibilities to the Navajo people inhering in the 2005 San Juan
River Basin Water Rights Settlement between the Navajo Nation, the
United States, and the State of New Mexico. Its importance and benefits
are difficult to overstate. Purely by way of example:
1. Currently, the eastern Navajo Reservation, the City of Gallup and
McKinley County rely on dwindling groundwater resources
that are increasingly expensive and difficult to develop.
Water from the San Juan River constitutes the only
available and economically viable long term supply.
Completion of the Project is therefore essential to--and
guarantees--the futures of the Reservation, the City and
the County.
2. Approximately 40% of the Reservation's residents have no water
service and must haul water to their homes and businesses.
Passage of the Act, assuring the Project's completion, will
set the stage for the piped delivery of water to
communities lacking water service, assuring and enhancing
their health and their social, cultural and economic
vitality.
3. The City of Gallup and McKinley County have lost a substantial
portion of their industrial and commercial base, leading to
employment loss, stagnation and associated ills. The City
and County (over half of whose residents are Navajo) are
poised to attract and foster new industrial and other
business development due to the availability of land and
Gallup's location as a rail and road transportation hub.
Delivery of Project Water will turn those possibilities to
realities. In economic terms, the Project is a ``game
changer'' for the City and County.
4. The Navajo Nation, Gallup and the County were severely impacted
by the Covid pandemic (Gallup was literally closed and
quarantined at the pandemic's height) due in substantial
part to longstanding limitations in the availability of
health care services. Recently, the Nation and Indian
Health Services (IHS) determined to establish a new
hospital on land owned by the Nation near Gallup's northern
boundary and adjacent to land the City is in the process of
annexing. The new hospital will substantially expand and
improve the delivery of health care services to members of
the Nation, and will foster economic development in the
City, the County and on the Reservation. The availability
of Project water is key to the new hospital's success and
sustainability.
These and other critical Project benefits are mirrored by their
opposites should the Act fail to pass. The Project, 15 years into its
planning and construction at a cost of about $1.5 billion, is largely
complete. The Act's failure will not only strand those massive
investments, it will undermine trust in the Project and its founding
Settlement by forcing the Reservation and the City and County to
continue their reliance on increasingly scarce groundwater. Communities
will continue to stagnate, economic opportunities will lapse and go
elsewhere, and the health of those on the Reservation and in the City
and County will suffer. Passage of the Act quite literally means the
difference between a trust honored through an assured future and one
diminished by doubt and contingency.
Each of you has our thanks and full-fledged support in advancing
the Act, and we are confident you will each do your best to assure its
passage.
Sincerely,
City of Gallup, New Mexico McKinley County, New Mexico
Louis Bonaguidi, Mayor Robert Baca, Chairperson
Linda Garcia, City
Councilor Danielle Notah, County
Commissioner
Michael Schaaf, City
Councilor Walt Eddy, County Commissioner
Sarah Piano, City Councilor
Ron Molina, City Councilor
______
Statement for the Record
David Eason
City Attorney of Gallup
INTRODUCTION
Chairman Cliff Bentz, Ranking Member Jared Huffman, and Members of
the Subcommittee,
I want to first thank you for inviting and giving me the
opportunity to testify today before the House Committee on Natural
Resources Subcommittee on Water, Wildlife and Fisheries regarding H.R.
3977-The Navajo-Gallup Water Supply Project Amendments Act of 2023.
My name is David Eason and I am the City Attorney for Gallup, New
Mexico. The City of Gallup is composed of approximately 20,000 diverse
individuals. Gallup lies in the heart of Native American ancestral
homelands. Tribal members--members of the Navajo, Hopi, and Zuni
tribes--make up 49.1% of the population. Today, I am here to support
and provide an overview of The Navajo Water Supply Project and to
underscore the critical need for passage of H.R. 3977, introduced by
Rep. Teresa Leger Fernandez on June 9th of 2023. H.R. 3977 recognizes
and addresses the pressing need to provide sustainable water resources,
improve infrastructure, and promote the well-being of the communities
in the region.
Water is essential for healthy and fulfilling lives. Long-standing
water uncertainties and shortages undermine public health and economic
development, and touch virtually all aspects of daily life. Water
settlements protect Tribal Nations' senior water rights, ensuring
reliable and safe water for drinking, cooking, and sanitation. They
improve public health and the environment on reservations, support
growing and sustainable economies, promote Tribal sovereignty and self-
sufficiency, and fulfill the U.S.'s trust responsibilities.
Areas served by the Project currently rely on a depleting,
expensive, and low quality groundwater supply that is inadequate both
for current and future needs. Passage of the Bill is crucial to avoid
delays in Project completion, thereby ensuring ample supplies of clean
water for Navajo and other native communities into the foreseeable
future and beyond. Having invested approximately $46 million in Project
capital, together with other expenses and countless hours of personnel
time, the City of Gallup has pegged its future and the future of its
residents (about 45% of whom are Navajo) on the successful completion
of the Project. If the Bill does not pass, the City's future is in
substantial doubt. This Bill must pass before its funding runs out.
It's time to finally fulfill promises and secure water rights for the
Navajo Nation and surrounding communities.
The importance of this Bill's passage is underscored by its
bipartisan support in both the Senate and House, with co-sponsorship
from both Democrats and Republicans. The Senate Bill uniquely includes
provisions to extend water supplies to Navajos residing in Utah,
highlighting its comprehensive approach to addressing water needs
across state lines. Bipartisan backing reflects the universal
recognition of the necessity and urgency of ensuring water security and
fulfilling the nation's commitments to Tribal communities.
BACKGROUND
CONCEPT OF WATER AGREEMENTS
The law governing Tribal water rights was first established in
Winters v. United States, a case concerning the Milk River in Montana,
which bordered the Fort Belknap Indian Reservation.\1\ Non-Indians had
diverted the river's waters for irrigation, depriving the reservation
of water. The United States sued to stop the diversion.\2\ The Supreme
Court eventually heard the case and determined that, although there was
no specific treaty regarding the Milk River, an agreement existed that
designated the reservation as a permanent home for the tribes. The
Court noted that the reservation lands were arid and ``in order to make
them productive require large quantities of water.'' \3\ The Court held
that the tribes did not give up their water rights when establishing
the reservation, and that their rights superseded those of non-native
landowners who obtained state law rights after the tribes'
agreement.\4\ The Court further held that in interpreting Indian
treaties ``ambiguities occurring will be resolved from the standpoint
of Indians.'' \5\ Following Winters, courts have generally held that
``tribes have a reserved right to water sufficient to fulfill the
purpose of their reservations,'' which rights are effective as of ``the
date the reservations were established.'' \6\
---------------------------------------------------------------------------
\1\ Leonard R. Powell, The Supreme Court and Tribal Water Rights,
AMERICAN BAR ASSOCIATION, (Jan. 22, 2024), https://www.americanbar.org/
groups/crsj/publications/human_ rights_magazine_home/native-american-
issues/supreme-court-and-tribal-water-rights/.
\2\ Id.
\3\ Winters v. United States, 207 U.S. 564 (1908).
\4\ Leonard R. Powell, The Supreme Court and Tribal Water Rights,
AMERICAN BAR ASSOCIATION, (Jan. 22, 2024), https://www.americanbar.org/
groups/crsj/publications/human_ rights_magazine_home/native-american-
issues/supreme-court-and-tribal-water-rights/.
\5\ Winters v. United States, 207 U.S. 564, 576 (1908).
\6\ CHARLES STERN, CONG. RSCH. SERV., R44148, Indian Water Rights
Settlements (2023).
---------------------------------------------------------------------------
Since 1990, the Department of the Interior's policy has been to
resolve Indian water rights through negotiated settlements rather than
litigation. The approach and implementation of these settlements
require federal action.\7\ As of October of 2023, 39 Indian water
rights settlements had been federally approved, the majority of which
have been approved and enacted by Congress.\8\
---------------------------------------------------------------------------
\7\ CHARLES STERN, CONG. RSCH. SERV., R44148, Indian Water Rights
Settlements (2023).
\8\ CHARLES STERN, CONG. RSCH. SERV., R44148, Indian Water Rights
Settlements (2023).
---------------------------------------------------------------------------
Indian water rights are vested property rights as to which the
United States has trust responsibilities.\9\ The United States Supreme
Court has long recognized the ``distinctive obligation of trust
incumbent upon the Government in its dealings'' with Native Americans
and ``under a humane and self imposed policy has found expression in
many acts of Congress and numerous decisions of the court, it has
charged itself with moral obligations of the highest responsibility and
trust.'' \10\ This trust doctrine has been at the center of dealings
with Native tribes and is one of the most important principles in
federal Indian law.\11\
---------------------------------------------------------------------------
\9\ CHARLES STERN, CONG. RSCH. SERV., R44148, Indian Water Rights
Settlements (2023).
\10\ Seminole Nation v. United States, 316 U.S. 286, 297 (1942).
\11\ U.S. Dep't of the Interior, What is the Federal Indian Trust
Responsibility? (2017), https://www.bia.gov/faqs/what-federal-indian-
trust-responsibility.
---------------------------------------------------------------------------
The Navajo Water Supply Project
Brief History
The Navajo Water Supply Project has a very long history dating back
to the 1970s. In 1971 and 1984, two different studies were conducted to
expand water supply to the Navajo communities and the City of
Gallup.\12\ In 1986, an appraisal-level estimate for a system with a
main transmission line along Highway 371 was conducted, and by 2000,
five viable alternatives for the project had been evaluated.\13\ The
Omnibus Public Land Management Act of 2009 authorized this project as
part of the Navajo Nation San Juan River Basin Water Rights Settlement,
with a completion deadline of December 31, 2024, unless extended by
agreement among the Navajo Nation, New Mexico, and the Department of
the Interior.
---------------------------------------------------------------------------
\12\ Bureau of Reclamation, Navajo-Gallup Water Supply Project,
https://www.usbr.gov/projects/index.php?id=580.
\13\ Bureau of Reclamation, Navajo-Gallup Water Supply Project,
https://www.usbr.gov/projects/index.php?id=580.
---------------------------------------------------------------------------
The Navajo Gallup Water Supply Project spans about 300 miles of
pipeline, with 19 pumping plants and two water treatment plants. It
provides sustainable water from the San Juan River to the eastern
Navajo Nation, southwestern Jicarilla Apache Nation, and Gallup, New
Mexico, meeting the long-term needs of approximately 250,000 people.
Currently, these areas rely on a depleting groundwater supply that is
expensive to access, of poor quality, and inadequate to meet the
current and future demands of the served population. Over 30% of the
Navajo Nation hauls water to meet their daily needs.
In 2020, water deliveries to Navajo communities began on the
Project's Cutter Lateral. Deliveries to the Jicarilla Apache Nation
from the Cutter Lateral began in 2021. On the Project's San Juan
Lateral, pipeline, pump station and storage construction is nearly
complete, with construction of treatment and storage facilities slated
for completion in 2028.\14\
---------------------------------------------------------------------------
\14\ Bureau of Reclamation, Navajo-Gallup Water Supply Project,
https://www.usbr.gov/projects/index.php?id=580.
---------------------------------------------------------------------------
The Project Construction Committee, comprising representatives from
the Bureau of Reclamation, Gallup, the Navajo Nation, the Jicarilla
Apache Nation, and New Mexico, sets the project schedule, which depends
on funding from Congress and Project Participants.
The Project includes two principal pipelines (referred to as
``laterals''): the Cutter Lateral and the San Juan Lateral. The Cutter
Lateral transports water from the Cutter Reservoir via pipelines and
pumping stations to the Cutter Lateral Water Treatment Plant, from
which treated water is supplied to communities on and around the
Jicarilla reservation. The San Juan Lateral diverts water from the San
Juan River at the San Juan Generating Station diversion point,
transports the water to a nearby reservoir for storage, then conveys
the water through pumping stations and pipelines to the San Juan
Lateral Water Treatment Plant, from which treated water is delivered to
Navajo communities in western New Mexico and to Gallup. At peak
construction, the project is expected to create 600-650 jobs.
Navajo-Gallup Water Supply Project Amendments Act of 2023 (H.R. 3977)
\15\
---------------------------------------------------------------------------
\15\ Navajo-Gallup Water Supply Project Amendments Act of 2023,
H.R. 3977, 118th Cong. (2023).
H.R. 3977 amends the Northwestern New Mexico Rural Water Projects
Act to extend the Project's completion date, provide additional
funding, and add other improvements to the Act.
Highlights of H.R. 3977:
1. Increase the authorized Project cost ceiling: The Bill increases
authorized funding from $870 million to $2.175 billion.
2. Deferred Construction Fund:
A. The Bill establishes a deferred construction fund for
project facilities and allows for future construction or
alternative facilities.
3. Project Service Area Expansion: The Bill authorizes expansion of
the project to service area to include communities within
Rio San Jose Basin, New Mexico, and Lupton, Arizona, within
the Little Colorado River Basin.
4. Land Trust Provisions: The Bill directs the Department of
Interior to take specified land into trust for Navajo
Nation's benefit, including land where various project
facilities are located.
5. Renewable Energy:
A. Provides up to $6.25 million for renewable energy
development and $1.25 million specifically for hydroelectric
power development within project facilities.
6. Management of Trust Funds:
A. Navajo Nation Operations, Maintenance, and Replacement
Trust Fund: Establishment of a trust fund for operations,
maintenance, and replacement costs with a maximum appropriation
of $250 million.
B. Jicarilla Apache Nation Operations, Maintenance, and
Replacement Trust Fund: A similar trust fund for the Jicarilla
Apache Nation with a maximum appropriation of $10 million.
7. Eliminate Double Taxation:
A. Tribal land:
i. Activities related to construction, operation,
or maintenance of project facilities on tribal land are
subject to Navajo Nation taxation and exempt from state
and local taxes.
B. Non-Tribal Land:
i. Such activities on non-tribal land are subject
to state taxation and exempt from Navajo Nation taxes.
8. Deadline Extensions:
A. The deadline for constructing project facilities is
extended to December 31, 2029.
B. Deadlines for waivers and releases are extended from
2025 to 2030.
In sum, the Bill's amendments are designed to enhance funding,
expand service areas, manage land trust issues, promote renewable
energy, and ensure long-term support for water infrastructure projects
benefiting the Navajo Nation, the Jicarilla Apache Nation, and the City
of Gallup.
WHY WE ARE HERE TODAY
We are here today to urge the performance of a promise long
unfulfilled. In 1868, the U.S., after displacing the Navajo through a
series of forced marches known as the Long Walk, entered into a treaty
with the Navajo, recognizing their nation, their reserved land, and,
under Winters, their rights to water. Yet currently, over 30% of the
Navajo on the reservation lack running water, and must travel great
lengths to collect it.\16\
---------------------------------------------------------------------------
\1\ Leonard R. Powell, The Supreme Court and Tribal Water Rights,
AMERICAN BAR ASSOCIATION, (Jan. 22, 2024), https://www.americanbar.org/
groups/crsj/publications/human_ rights_magazine_home/native-american-
issues/supreme-court-and-tribal-water-rights/.
---------------------------------------------------------------------------
We are here today because the United States, as trustee, holds and
exercises fiduciary responsibilities respecting Native Tribes of the
highest moral and legal order, including the obligation to protect the
ability of Tribes and their citizens to sustain their communities and
lives on ancestral lands.
We are here today because water is crucial for healthy and
fulfilling lives and because long-standing uncertainties and shortages
of water undermine public health and economic development, impacting
all aspects of daily life.
We are here today because the City of Gallup, having invested $46
million in project capital, depends on the Project's success for its
future, with nearly 45% of its residents being Navajo.
We are here today because if the Bill does not pass, Gallup's
future is in jeopardy.
We will do everything we can with your Subcommittee and the
Congress. Thank you for the opportunity to present this testimony to
you today.
______
Statement for the Record
Louis Bonaguidi
Mayor of Gallup, New Mexico
INTRODUCTION
Chairman Cliff Bentz, Ranking Member Jared Huffman, and Members of
the Subcommittee, I want to first thank you for inviting and giving me
the opportunity to testify today before the House Committee on Natural
Resources Subcommittee on Water, Wildlife and Fisheries regarding H.R.
3977, The Navajo-Gallup Water Supply Project Amendments Act of 2023.
My name is Louis Bonaguidi and I am the Mayor of Gallup, New
Mexico. I was born and raised in Gallup, and am proud to continue
serving this community. Gallup, New Mexico is composed of approximately
20,000 diverse individuals. Gallup lies in the heart of Native American
ancestral homelands. Tribal members--members of the Navajo, Hopi, and
Zuni tribes--make up 49.1% of the population. Today, I am here to
support and provide an overview of The Navajo Water Supply Project and
to underscore the critical need for passage of H.R. 3977, introduced by
Rep. Teresa Leger Fernandez on June 9th of 2023. H.R. 3977 recognizes
and addresses the pressing need to provide sustainable water resources,
improve infrastructure, and promote the well-being of the communities
in the region.
Persistent poverty and long-standing water uncertainties touch
virtually all aspects of daily life. Despite substantial funding, the
over $1 billion invested may yield minimal progress if this bill is not
passed, leaving residents with inadequate returns on the financial
efforts made.
BACKGROUND
The Navajo-Gallup Water Supply Project encompasses approximately
300 miles of pipeline, incorporating 19 pumping plants and two water
treatment facilities. This project delivers sustainable water from the
San Juan River to the eastern Navajo Nation, southwestern Jicarilla
Apache Nation, and Gallup, New Mexico, addressing the long-term needs
of around 250,000 individuals. Presently, these areas depend on a
diminishing groundwater supply that is costly to access, of poor
quality, and insufficient to meet both current and future demands. Over
30% of the Navajo Nation transports water to fulfill their daily needs.
Water deliveries to Navajo communities began on the Project's
Cutter Lateral in 2020 and deliveries to the Jicarilla Apache Nation
starting in 2021. Construction on the San Juan Lateral, including
pipeline, pump station, and storage facilities, is nearing completion,
with final treatment and storage facilities expected to be completed by
2028.\1\
---------------------------------------------------------------------------
\1\ Bureau of Reclamation, Navajo-Gallup Water Supply Project,
https://www.usbr.gov/projects/index.php?id=580.
---------------------------------------------------------------------------
HISTORY AND AUTHORIZATION
The Omnibus Public Land Management Act of 2009 authorized this
project as part of the Navajo Nation San Juan River Basin Water Rights
Settlement, with a completion deadline of December 31, 2024, unless
extended by agreement among the Navajo Nation, New Mexico, and the
Department of the Interior.
PROJECT COMPONENTS
The project includes two main pipelines (referred to as
``laterals''): the Cutter Lateral and the San Juan Lateral. The Cutter
Lateral transports water from the Cutter Reservoir to the Cutter
Lateral Water Treatment Plant, supplying treated water to communities
on and around the Jicarilla reservation. The San Juan Lateral diverts
water from the San Juan River, storing it in a nearby reservoir before
transporting it to the San Juan Lateral Water Treatment Plant, which
provides treated water to Navajo communities in western New Mexico and
Gallup. At peak construction, the project is expected to create 600-650
jobs.
PERSISTENT POVERTY & WATER SECURITY IN GALLUP, NEW MEXICO
Gallup, New Mexico, meets the criteria for persistent poverty,
having sustained a poverty rate of 20% or more since the 1990 census.
As of 2022, 33.6% of the population was in poverty.\2\ Simultaneously,
``there are few places in the world where water holds such profound
significance as here in New Mexico.'' \3\ Poverty and water scarcity
pose severe dangers to communities. Poverty limits access to basic
needs and water scarcity exacerbates these issues by restricting access
to clean water, essential for drinking, sanitation, and agriculture.
This can result in the spread of diseases, dehydration, food
insecurity, and heightened stress, undermining socio-economic
development and quality of life.\4\
---------------------------------------------------------------------------
\2\ Gallup, New Mexico, Data USA (2022), https://datausa.io/
profile/geo/gallup-nm-31000US23700
\3\ 50-Year Water Action Plan, NM.GOV, https://www.nm.gov/water-
security-in-new-mexico/.
\4\ Water and Poverty: How Access to Safe Water Reduces Poverty,
Lifewater (Dec. 26 2014), https://lifewater.org/blog/water-poverty/.
---------------------------------------------------------------------------
At the current rate, New Mexico will have 25% less water by the
time a high school graduate of 2024 reaches retirement age.\5\ There is
no time to waste in ensuring water delivery to the population.
Immediate action is required to mitigate the future detrimental effects
of inadequate progress in water infrastructure. The COVID-19 pandemic
exacerbated the urgency of water access in Gallup, a community already
grappling with chronic water scarcity. In 2021, five of Gallup's 16
water wells, including two of the largest, ceased producing water.\6\
Delays in the project forces a significant number of our population to
rely on these ``strained groundwater sources.'' \7\ With no nearby
rivers, the city relies on wells tapping groundwater stored in
underground sandstone. Water levels have declined over the decades,
increasing scarcity and causing great concern among residents.\8\
Thousands of Navajos and residents of Gallup lack clean and running
water at home.\9\ Across the Navajo Nation, residents use a fraction of
the water the average American uses due to the most severe drought in a
century. They must travel long distances to haul water for personal use
and to sustain livestock.\10\
---------------------------------------------------------------------------
\5\ 50-Year Water Action Plan, NM.GOV, https://www.nm.gov/water-
security-in-new-mexico/.
\6\ Elizabeth Miller, Navajo-Gallup water delay spurs problem
solving in arid Southwest, New Mexico in Depth (May 7, 2021) https://
nmindepth.com/2021/navajo-gallup-water-delay-spurs-problem-solving-in-
arid-southwest/.
\7\ Id.
\8\ Id.
\9\ Richard Tsong-Taatarii, On the Navajo Nation, a life without
water, Searchlight New Mexico (Nov. 29, 2023), https://
searchlightnm.org/on-the-navajo-nation-a-life-without-water/.
\10\ Id.
---------------------------------------------------------------------------
Water is fundamental to sustainable development, socio-economic
growth, and a healthy and capable population.\11\ Studies on drought
have found an association with acute stress and worsening of chronic
diseases, dehydration, higher risk for heat-related illness, and
greater infectious disease incidence.\12\ Moreover, mental distress
heightens when there are service shut offs and financial stress related
to access to clean water.\13\ Achieving water equity, quality, and
accessibility in Gallup, NM can be achieved through the passage of H.R.
3977.
---------------------------------------------------------------------------
\11\ Water, United Nations, https://www.un.org/en/global-issues/
water.
\12\ Lara J. Cushing et al., Water Insecurity And Population
Health: Implications For Health Equity And Policy, Health Affairs (Oct.
12 2023), https://www.healthaffairs.org/content/briefs/water-
insecurity-and-population-health-implications-health-equity-and-
policy#::text=Drought%
20can%20also%20lead%20to,and%20greater%20infectious%20disease%20incidenc
e.
\13\ Id.
---------------------------------------------------------------------------
The city is counting on the passage of H.R. 3977 to provide water
to a population that has been promised water delivery since 2009 and to
build a stronger future for the community.
CONCLUSION
The passage of H.R. 3977, the Navajo-Gallup Water Supply Project
Amendments Act of 2023, is vital for addressing the water scarcity
issues in Gallup, New Mexico, and surrounding Navajo Nation
communities. The project, authorized in 2009, delivers sustainable
water resources and improves infrastructure to support approximately
250,000 people. The urgency of this legislation cannot be overstated,
as delays exacerbate the region's water challenges, impacting health,
socio-economic development, and overall quality of life. The passing of
this bill fulfills long-standing promises and secures a sustainable
future for these communities.
Thank you for the opportunity to present this testimony to you
today. We remain committed to working with your Subcommittee and
Congress. I am happy to answer any questions.
______
NORTHERN PUEBLOS TRIBUTARY WATER RIGHTS ASSOCIATION
Albuquerque, New Mexico
July 16, 2024
Hon. Cliff Bentz, Chairman
Hon. Jared Huffman, Ranking Member
House Natural Resources Committee
Subcommittee on Water, Wildlife and Fisheries
1324 Longworth House Office Building
Washington, DC 20515
Re: Support of the Pueblo of Nambe, Pueblo of Pojoaque, Pueblo de San
Ildefonso and Pueblo of Tesuque for H.R. 6599
Dear Representative Bentz and Representative Huffman:
The Pueblo of Nambe, the Pueblo of Pojoaque, the Pueblo de San
Ildefonso, and the Pueblo of Tesuque (collectively ``Pueblos''), as the
four members of the Northern Pueblos Tributary Water Rights
Association, write this letter in support of the bill sponsored and
introduced by Representative Leger-Fernandez of the New Mexico
delegation, H.R. 6599, to restore interest on the Aamodt Settlement
Pueblos' Fund established by section 617(c)(l)(B) of the Aamodt
Settlement Act, Pub. L. No. 111-291. The Pueblos herein state their
support for the bill.
Section 617(c)(l)(B) of the Aamodt Settlement Pueblos' Fund
authorized the appropriation of $37.5 million ``to assist the Pueblos
in paying the Pueblos' share of the cost of operating, maintaining, and
replacing the Pueblo Water Facilities and Regional Water System.'' The
Aamodt Settlement Act appropriated an additional $15 million for the
Pueblos, for a total of fund amount of $52.5 million. The authorized
funds are for the Pueblos only, for operation and maintenance expenses
related to the Pojoaque Basin Regional Water System, the critical
infrastructure necessary to effectuate the Aamodt settlement. Unlike
other Indian water rights settlements, the Aamodt Settlement Act did
not provide that the funds authorized in section 617 could be invested
between the authorization date and the settlement enforcement date,
which was September 15, 2017. As a result, the Pueblos' funds sat for a
period of 81 months, uninvested, without earning any interest.
H.R. 6599 will restore interest for that 81-month period so that
the Pueblos' settlement will be treated equally to other Indian water
rights settlements whose funds Congress allowed to be invested. The
Pueblos will, as a result of the bill, receive approximately $4.3
million which will be added to the operation, maintenance and
replacement fund shared by the Pueblos. The restored funds will bring
the Pueblos into parity with other Indian tribes who have settled their
water rights and invested the funds appropriated to them by Congress.
Given the expectation of increasing costs to the Pueblos relating to
operation, maintenance and replacement of the Regional Water System,
the addition of $4.3 million in forgone earned interest will be
critically important.
The Pueblos wish to express their appreciation your actions to
ensure that the Pueblos are treated on equal footing with other Indian
tribes in this country. We thank you for undertaking this important
rectification of the Aamodt Settlement Act.
Sincerely,
Governor Nathaniel S.
Porter Governor Jenelle Roybal
Governor Christopher
Moquino Governor Milton Herrera
______
La Asociacion de las Acequias del Rio Vallecitos
Ojo Caliente, NM
July 2, 2024
Hon. Bruce Westerman, Chairman
House Natural Resources Committee
Hon. Cliff Bentz, Chairman
Subcommittee on Water, Wildlife, and Fisheries
1324 Longworth House Office Building
Washington, DC 20515
Re: Request for hearing on H.R. 8685, Ohkay Owingeh Rio Chama Water
Rights Settlement Act of 2024
Dear Chairmen Westerman and Bentz:
I am writing on behalf of La Asociacion de las Acequias del Rio
Vallecitos, Tusas y Ojo Caliente to convey our support for the Rio
Chama water rights settlement and to request a hearing on this critical
legislation.
Our regional acequia association represents approximately 32
community acequias and hundreds of parciantes (water-rights users) in
our region who irrigate almost 2,500 acres collectively. The proposed
settlement will safeguard our water rights and traditional practices.
Approval of this settlement will mark a significant milestone for
northern New Mexico. The settlement promises not only enhanced water
security and the preservation of our historic lifestyle and cultural
traditions but also substantial economic benefits throughout the
region, spurring business activity and creating job opportunities.
This settlement is a well-designed, inclusive, and thorough
resolution. The residents of Ojo Caliente and surrounding communities
are supportive of this agreement. We at La Asociacion de las Acequias
del Rio Vallecitos, Tusas y Ojo Caliente earnestly urge you to assist
in enacting this bill into law.
Sincerely,
Luis J. Pena,
Vice-President
______
Asociacion de Acequias Nortenas de Rio Arriba
Tierra Amarilla, New Mexico
June 29, 2024
Hon. Bruce Westerman, Chairman
House Natural Resources Committee
Hon. Cliff Bentz, Chairman
Subcommittee on Water, Wildlife, and Fisheries
1324 Longworth House Office Building
Washington, DC 20515
Re: Request for hearing on H.R. 8685, Ohkay Owingeh Rio Chama Water
Rights Settlement Act of 2024
Dear Chairmen Westerman and Bentz:
On behalf of the Asociacion de Acequias Nortenas de Rio Arriba, I
want to express our strong and enthusiastic support for the Rio Chama
water rights settlement, and we respectfully request a hearing on this
important legislation. Our organization represents 545 individual
private individuals and families irrigating nearly 8,000 acres in the
upper Rio Chama, whose water rights and traditional uses will be
protected by the settlement, if enacted.
If this settlement is approved, it will be a monumental achievement
for our part of Northern New Mexico. The settlement is comprehensive
and resolves major issues on the river. In addition to settling the
Pueblo water rights, the agreement comprises water sharing terms that
benefit all water users on the Rio Chama, including the 80 community
non-tribal ditches that rely on this vital source for their continued
existence and vitality.
In addition to greater security in water supply and preservation of
our historic way of life and cultural practices, the settlement will
generate substantial economic benefits up and down the valley,
increasing business activity and employment opportunities.
This is a well-crafted, inclusive and comprehensive settlement.
Residents of the Rio Chama Valley are greatly encouraged and very
supportive of this settlement. The Acequias Nortenas respectfully urge
you to help us get this bill enacted into law.
Very Truly Yours,
Antonio Manzanares,
President
______
EL RITO DITCH ASSOCIATION
El Rito, NM
July 1, 2024
Hon. Bruce Westerman, Chairman
House Natural Resources Committee
Hon. Cliff Bentz, Chairman
Subcommittee on Water, Wildlife, and Fisheries
1324 Longworth House Office Building
Washington, DC 20515
Re: Request for hearing: H.R. 8685, Ohkay Owingeh Rio Chama Water
Rights Settlement Act of 2024
Dear Chairmen Westerman and Bentz:
I am writing on behalf of the El Rito Ditch Association, an
association of the 11 community acequias located near the Village of El
Rito in Rio Arriba County, New Mexico, in regard to H.R. 8685. This
legislation would authorize and approve the Ohkay Owingeh Rio Chama
Water rights Settlement Agreement, entered into by the major water
users of the Rio Chama, including the El Rito Ditch Association. The El
Rito Ditch Association strongly supports the settlement and
respectfully asks that you schedule and conduct a hearing on the
legislation soon.
The El Rito Ditch Association members provide irrigation water from
the Rio El Rito to over four hundred water rights owners who
collectively irrigate about 2,500 acres. The Rio El Rito is a tributary
to the Rio Chama, and the Association has been actively involved in the
water adjudication suit, State of New Mexico v. Aragon, US Dist. Ct.
No. 69cv07941 D.N.M. since its inception to defend the water rights of
the local users. The continuity of irrigation is essential to the
lifeblood of the local area. The local settlement agreement of Ohkay
Owingeh's water rights claims from the Rio Chama protects the continued
water uses that have sustained our rural community since 1780. It is
constructed around a water sharing agreement that benefits the historic
non-Indian community ditches like El Rito, as well as Ohkay Owingeh
pueblo. In addition, the settlement provides that the non-Indian
parties will have access to funding provided by the State of New Mexico
that will allow improvements to infrastructure owned by the non-Indian
acequias. Overall, the settlement agreement is inclusive and
comprehensive and will be overall beneficial to all water users on the
Rio Chama. The El Rito Ditch Association respectfully request that
schedule a hearing on this important legislation, and help the local
parties see finality with it is enacted into law.
Respectfully,
Steve Gallegos,
President
______
Rio Rancho
Rio Rancho, NM
October 17, 2023
Hon. Teresa Leger Fernandez
House Natural Resources Committee
1324 Longworth House Office Building
Washington, DC 20515
Re: Support for H.R. 1304/S. 595, the Pueblos of Jemez and Zia Water
Rights Settlement Act of 2022 (Title II)
Dear Congresswoman Leger Fernandez:
The City of Rio Rancho appreciates the opportunity to thank you for
sponsoring H.R. 1304 that includes the Pueblos of Jemez and Zia Water
Rights Settlement Act of 2022, and for your continued support of this
important legislation. The Bill provides for Congressional approval of
the Settlement Agreement for the determination of the water rights of
the Pueblos of Jemez and Zia and provides multiple benefits for the
region and area water users including the City of Rio Rancho. The City
approved and is a signatory to the Settlement Agreement and
wholeheartedly supports full approval of legislation by Congress to
allow the settlement to move forward. The settlement resolves the
Pueblos' water claims concluding longstanding litigation over those
claims; protects the City's essential water rights for municipal
purposes; and provides a collaborative basis to manage the vital and
shared water resources of the Jemez Basin for all water users going
forward.
We thank you for your representation of the City's interests and
for your efforts to obtain Congressional approval of the Pueblos of
Jemez and Zia Water Rights Settlement Act of 2022. We would welcome the
opportunity to answer any questions you may have.
Sincerely,
Matthew Geisel,
City Manager
______
La Acequia Madre del Ojo del Gallo
San Rafael, New Mexico
Hon. Teresa Leger Fernandez
House Natural Resources Committee
1324 Longworth House Office Building
Washington, DC 20515
Re: Support for H.R. 1304/S. 595, the Rio San Jose and Rio Jemez Water
Settlements Act of 2023
Dear Congresswoman Leger Fernandez:
We are writing on behalf of La Acequia Madre del Ojo del Gallo, an
acequia in the Rio San Jose Basin, to thank you for sponsoring Bill
H.R. 1304, the Rio San Jose and Rio Jemez Water Settlements Act of
2023, and for your continued support of this very important
legislation. This Bill gives Congressional approval of the Settlement
Agreement for determination of the water rights of the Pueblos of Acoma
and Laguna and includes many benefits for our Acequia and parciantes.
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
the 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. 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.
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
seek State legislation to expressly 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 the
Acequias' water supplies and to 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 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 understand that another Indian water rights
settlement, the Fort Belknap Indian Community Water Rights Settlement
Act of 2023, recently received Senate approval by attaching it to the
National Defense Authorization Act bills voted on by the Senate. If an
opportunity arises for H.R. 1304 to be similarly attached to the NDAA
or other legislation that might be corning up for vote, we hope that
you will advocate for that.
We thank you very much for your representation of our interests and
all your efforts on our behalf to obtain Congressional approval of the
Rio San Jose Settlement Agreement. We would welcome the opportunity to
discuss this further with you and your staffers and answer any
questions you may have.
Sincerely,
Randall Chavez,
President
______
CEBOLLETITA ACEQUIA ASSOCIATION
Hon. Teresa Leger Fernandez
House Natural Resources Committee
1324 Longworth House Office Building
Washington, DC 20515
Re: Support for H.R. 1304/S. 595, the Rio San Jose and Rio Jemez Water
Settlements Act of 2023
Dear Congresswoman Leger Fernandez:
We are writing on behalf of the Cebolletita Acequia Association, an
acequia in the Rio San Jose Basin, to thank you for sponsoring Bill
H.R. 1304, the Rio San Jose and Rio Jemez Water Settlements Act of
2023, and for your continued support of this very important
legislation. This Bill gives Congressional approval of the Settlement
Agreement for determination of the water rights of the Pueblos of Acoma
and Laguna and includes many benefits for our Acequia and parciantes.
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
the 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. 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.
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
seek State legislation to expressly 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 the
Acequias' water supplies and to 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 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 understand that another Indian water rights
settlement, the Fort Belknap Indian Community Water Rights Settlement
Act of 2023, recently received Senate approval by attaching it to the
National Defense Authorization Act bills voted on by the Senate. If an
opportunity arises for H.R. 1304 to be similarly attached to the NDAA
or other legislation that might be coming up for vote, we hope that you
will advocate for that.
We thank you very much for your representation of our interests and
all your efforts on our behaJf. We would welcome the opportunity to
discuss this further with you and your staffers and answer any
questions you may have.
Sincerely,
Edward Michael,
Chair
______
COMMUNITY DITCH OF SAN JOSE DE LA CIENEGA
San Fidel, New Mexico
October 2, 2023
Hon. Teresa Leger Fernandez
House Natural Resources Committee
1324 Longworth House Office Building
Washington, DC 20515
Re: Support for H.R. 1304/S. 595, the Rio San Jose and Rio Jemez Water
Settlements Act of 2023
Dear Congresswoman Leger Fernandez:
We are writing on behalf of the Community Ditch of San Jose de la
Cienega, an acequia in the Rio San Jose Basin, to thank you for
sponsoring Bill H.R. 1304, the Rio San Jose and Rio Jemez Water
Settlements Act of 2023, and for your continued support of this very
important legislation. This Bill gives Congressional approval of the
Settlement Agreement for determination of the water rights of the
Pueblos of Acoma and Laguna and includes many benefits for our Acequia
and parciantes. 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
the 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. 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.
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
seek State legislation to expressly 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 the
Acequias' water supplies and to 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 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 understand that another Indian water rights
settlement, the Fort Belknap Indian Community Water Rights Settlement
Act of 2023, recently received Senate approval by attaching it to the
National Defense Authorization Act bills voted on by the Senate. If an
opportunity arises for H.R. 1304 to be similarly attached to the NDAA
or other legislation that might be coming up for vote, we hope that you
will advocate for that.
We thank you very much for your representation of our interests and
all your efforts on our behalf. We would welcome the opportunity to
discuss this further with you and your staffers and answer any
questions you may have.
Sincerely,
Harding Polk II Juanita Aranda-Vigil
Chairman Secretary
Beverly Tafoya Martin Vigil
Treasurer Mayordomo
______
Cubero Acequia Association
Cubero, NM
Hon. Teresa Leger Fernandez
House Natural Resources Committee
1324 Longworth House Office Building
Washington, DC 20515
Re: Support for H.R. 1304/S. 595, the Rio San Jose and Rio Jemez Water
Settlements Act of 2023
Dear Congresswoman Leger Fernandez:
We are writing on behalf of the Cubero Acequia Association, an
acequia in the Rio San Jose Basin, to thank you for sponsoring Bill
H.R. 1304, the Rio San Jose and Rio Jemez Water Settlements Act of
2023, and for your continued support of this very important
legislation. This Bill gives Congressional approval of the Settlement
Agreement for determination of the water rights of the Pueblos of Acoma
and Laguna and includes many benefits for our Acequia and parciantes.
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 Acequia and the other
eight Acequias and Community itches located in the Rio San Jose Basin.
We believe the Settlement Agreement contains many provisions
beneficial to our Acequia and to this community as a whole. It brings
this 40 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 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 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 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 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 understand that another Indian water rights
settlement, the Fort Belknap Indian Community Water Rights Settlement
Act of 2023, recently received Senate approval by attaching it to the
National Defense Authorization Act bills voted on by the Senate. If an
opportunity arises for H.R. 1304 to be similarly attached to the NDAA
or other legislation that might be coming up for vote, we hope that you
will advocate for that.
We thank you very much for your representation of our interests and
all your efforts on our behalf. We would welcome the opportunity to
discuss this further with you and your staffers and answer any
questions you may have.
Sincerely,
Peter Salazar,
Chair
______
CUBERO ACEQUIA 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, Cubero Acequia Association (``Association'') is an organized
acequia and pursuant to Sec. 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-198300190 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.
______
VILLAGE OF MILAN
Milan, New Mexico
September 21, 2023
Hon. Teresa Leger Fernandez
House Natural Resources Committee
1324 Longworth House Office Building
Washington, DC 20515
Re: Support for H.R. 1304/S. 595, the Rio San Jose and Rio Jemez Water
Settlements Act of 2023
Dear Congresswoman Leger Fernandez:
The Village of Milan, New Mexico, thanks you for sponsoring H.R.
1304, The Rio San Jose and Rio Jemez Water Settlements Act of 2023, and
for your continued support of this critically important legislation.
This Bill gives Congressional approval of the Settlement Agreement for
determination of the water rights of the Pueblos of Acoma and Laguna
and includes many benefits for the Village and its residents. This
settlement was reached after many years of litigation and intense
settlement negotiation between the Pueblos and the other major water
rights claimants in the Rio San Jose Basin in New Mexico, including
Milan.
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 ways. First, under the settlement 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 provides protections for the Village's municipal water
supply from impairment caused by the Pueblos' future development of
their water rights. Third, the State adjudication court will retain
jurisdiction to enforce and interpret the Settlement Agreement and hear
appeals from Pueblo administrative decisions concerning their water
rights. Fourth, the settlement provides for up to $11 million in State
funding to the Village for much needed water and wastewater
infrastructure repairs and improvements. A secure municipal water
supply and functioning infrastructure are critical to the welfare of
our residents and the Village's ongoing efforts at economic
development.
We understand that another Indian water rights settlement, The Fort
Belknap Indian Community Water Rights Settlement Act of 2023, recently
received Senate approval by attaching it to the National Defense
Authorization Act bills voted on by the Senate. We hope that you will
support attaching H.R. 1304 to the NDAA or other legislation coming up
for a vote should such an opportunity arise.
We thank you for representing the Village's interests and your
continuing efforts to enact this legislation. Please do not hesitate to
contact us should you wish to discuss this matter with us.
Respectfully submitted,
Felix O. Gonzalez Vivian Brumbelow
Mayor Mayor Pro Tem
James Mercer Chris Archuleta
Trustee Trustee
Roseanne Lopez
Trustee
______
NEW MEXICO INTERSTATE STREAM COMMISSION
Santa Fe, New Mexico
September 7, 2023
Hon. Martin Heinrich
Hon. Ben Ray Lujan
U.S. Senate
Washington, DC 20510
Hon. Gabriel Vasquez
1517 Longworth House Office Building
Washington, DC 20515
Hon. Teresa Leger Fernandez
Hon. Melanie Stansbury
House Natural Resources Committee
1324 Longworth House Office Building
Washington, DC 20515
Re: Letter of Support for H.R. 3977
Dear members of the New Mexico Congressional Delegation:
In March 2009, Congress passed the Omnibus Public Land Management
Act of 2009 (Pub. L. 111-11). This Act included an authorization to
construct, operate and maintain the Navajo Gallup Water Supply Project
(``Project''), as part of a settlement to resolve the Navajo Nation's
water rights claims in the San Juan River Basin in New Mexico.
Due to circumstances that were not foreseen in 2009, additional
time and resources are needed to complete the Project as authorized by
Congress. Therefore, for a couple of years, the Project Participants
worked collectively on proposed amendments to Pub. L. 111-11. The
participants in the Projects are the Navajo Nation, the Jicarilla
Apache Nation, the City of Gallup, and the State of New Mexico through
the New Mexico Interstate Stream Commission (``NMISC''). The State of
New Mexico, through the NMISC, is a member of the Project Construction
Committee with the other Project Participants.
The amendments were introduced in the Senate as S. 1898 and in the
House as H.R. 3977. The NMISC has reviewed the draft of the Navajo-
Gallup Water Supply Project Amendments Act of 2023 and appreciates its
introduction in Congress. The NMISC supports advancing forward H.R.
3977.
Sincerely,
Mark Sanchez,
Chairman
______
Ms. Leger Fernandez. With that, I yield back.
Mr. Bentz. Now that everyone has found a place to sit and a
place to stand, we are going to go into recess until the end of
votes, which is probably about 45 minutes.
[Recess.]
Mr. Bentz. The Committee will come back to order. the Chair
recognizes the Ranking Member for his opening statement.
STATEMENT OF THE HON. RUBEN GALLEGO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Mr. Gallego. Good morning. Thank you, Chairman Bentz.
Today, we will hear from tribal leaders from Montana, New
Mexico, California, and my home state of Arizona on their water
rights settlements. The sheer number of bills on today's agenda
is not only a testament to the importance of water in Indian
Country, but a culmination of generations of work. The
legislation before us will resolve decades of litigation, and
support tribal economic development and the delivery of water
to Tribal Nations.
The Federal Government has a legal obligation to protect
tribal water rights and, as the Committee with primary
jurisdiction over tribal water rights settlements, it is our
responsibility to ensure that tribes have secure access to
water for current and future generations. While the tribes
before us today have been working on their settlements for
decades, the fight for water does not start with litigation nor
negotiations.
Tribes have utilized water resources on their ancestral
homelands since time immemorial. However, as Europeans begin to
migrate and colonize land to form the United States, tribes
were forcibly removed from their ancestral homelands and often
restricted from accessing significant water resources and
cultural resources. As the tribal leaders here today can
attest, the United States has a particularly gruesome track
record when it comes to their relationship with Tribal Nations,
from forced removal, termination, and assimilation policies to
the failure to live up to their trust and treaty obligations.
These policies have had long-lasting impacts on Tribal Nations,
and have left many Native communities without access to clean,
reliable water.
Despite the trust responsibility and the fact that tribes
typically hold the most senior water rights in several river
basins, many tribal water rights remain largely under-
developed, and unprotected. While tribes can and do go to court
to quantify and enforce their water rights, many tribes seek to
negotiate their water rights through a settlement rather than
lengthy, divisive, and costly litigation.
Negotiated water rights settlements bring together tribes,
states, the Federal Government, and other water users to
resolve competing water claims. Settlements are preferred by
parties as they provide tribes with the resources they need to
bring clean water to their community and reduce legal,
financial, and water supply uncertainty for all the settlement
parties. While settlements are preferred, they often require
tribes to give up their full senior priority for the ability to
get wet water and approval from states, the Federal Government,
and non-Indian water users. This is a significant loss for
tribes, but a sacrifice many Tribal Nations have made to
guarantee access to water for their citizens.
As we will hear today, every settlement is different, but
each seeks to provide tailored solutions that benefit all
parties and ensure access to reliable, clean drinking water for
tribes. I look forward to hearing testimony from the
Administration and tribal leaders with us here today on how
each of these settlements will better support the development
of water infrastructure across tribal communities.
I sincerely hope that we can work across the aisle on each
of these bills to move them through the Committee in a timely
manner to provide tribes here today with the justice they
deserve. And while I am pleased to see 12 tribal water
settlements before us today, I would be remiss if I didn't
mention my disappointment to see that Ranking Member Grijalva's
H.R. 8937 is not included on this agenda.
Ranking Member Grijalva's bill would provide $2.8 billion
in mandatory funding to implement settlements like the ones
before us today. Securing a reliable funding stream to enact
current and future settlements is essential, and I expect we
will hear a lot more about that in testimony today. I
respectfully urge the Majority to bring Ranking Member
Grijalva's legislation before the Subcommittee as soon as
possible.
Lastly, I would like to ask unanimous consent for
Representatives Leger Fernandez, Stansbury, and Vasquez of New
Mexico and Stanton of Arizona to participate in today's
hearing.
It is my pleasure to Chair this hearing right now.
Mr. Bentz. Without objection.
Mr. Gallego. Without objection, yes.
Mr. Bentz. Go ahead.
Mr. Gallego. It is my pleasure to be chairing this hearing.
This is my 10th year on this Committee. It has really been a
labor of love, especially on this Subcommittee, and I thank
everyone that has been involved, especially my colleagues
across the way, for showing leadership there.
Thank you, Mr. Chair, and I yield back.
Mr. Bentz. The Chair recognizes Congressman Vasquez for 5
minutes.
STATEMENT OF THE HON. GABE VASQUEZ, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW MEXICO
Mr. Vasquez. Thank you, Mr. Chairman, for holding this
critical hearing to ratify the water rights settlement for the
pueblo of Zuni and the other federally recognized tribes before
us here today.
I also want to extend a warm welcome to Governor Arden
Kucate, who is testifying before us here today on how this
landmark legislation would benefit the Zuni people. It is my
honor to represent Zuni Pueblo, who have called the northwest
corner of New Mexico home for time immemorial.
My legislation, the Zuni Indian Tribe Water Rights
Settlement Act, provides congressional approval for the
settlement agreement between the Zuni Tribe, the state of New
Mexico, the New Mexico State Engineer, and the United States in
its capacity as trustee for the Zuni Tribe.
I ask unanimous consent to enter into the record these
letters of support from the state of New Mexico and the Zuni
Tribe.
Mr. Bentz. Without objection.
[The information follows:]
STATE OF NEW MEXICO
OFFIICE OF THE STATE ENGINEER
Sante Fe, NM
July 12, 2024
Hon. Gabe Vasquez
1517 Longworth House Office Building
Washington, DC 20515
Dear Congressman Vasquez:
The New Mexico Office of the State Engineer is thankful for your
commitment in our efforts to settle the water rights claims of the New
Mexico Pueblos, Tribes, and Nations, and for introducing H.R. 8951, the
Zuni Tribe Water Rights Settlement Act of 2024 and referring it to the
House Committee on Natural Resources for consideration.
The State of New Mexico and the Zuni Tribe reached a settlement
agreement in March of 2023 resolving the claims of the Zuni Tribe in
the ongoing adjudication of water rights in the Zuni River Basin. The
Zuni Tribe Reservation is in one of the most remote and water-scarce
river basins in New Mexico. This legislation will provide funding for
the Tribe to build critical infrastructure needed to obtain a reliable
supply of water and create water security for generations to come. The
only other significant surface water rights owners in the region--the
Ramah Land and Irrigation Company and the Navajo Nation--support the
settlement.
The Settlement Agreement also provides for administrative
protections for the non-Tribal water users in the basin, the critically
endangered bluehead sucker fish, and importantly, the Zuni Salt Lake, a
culturally sacred site for Zuni and many other Pueblos, Tribes, and
Nations in the Southwest. Thank you again and please let me know if you
have any additional questions or concerns.
Sincerely,
Tanya Trujillo,
Deputy State Engineer
______
PUEBLO OF ZUNI
Zuni, New Mexico
July 9, 2024
Hon. Gabe Vasquez
1517 Longworth House Office Building
Washington, DC 20515
Re: H.R. 8951 ``Zuni Indian Tribe Water Rights Settlement Act of 2024''
Dear Congressman Vasquez:
On behalf of the Zuni Tribe and our Tribal Council, I want to
express our sincere appreciation for your and your staff's assistance
and support in getting the final details of our water settlement
legislation worked out and the bill introduced in the House. Approval
of this settlement by Congress is our number one priority as it will
help to ensure the protection of our limited water supply, and provide
the water we need to sustain and grow our community. It will also
provide critical protections for Zuni Salt Lake, an irreplaceable
cultural resource that is sacred to our Tribe, as well as to a number
of other tribes in the southwest.
As we have previously advised, in addition to the support of
Governor Michelle Lujan-Grisham and the New Mexico State Engineer's
office, the Settlement Agreement is supported by the Ramah Land and
Irrigation Company, the only irrigation company, and the largest non-
Indian irrigator, in the basin. Significantly, the Company's water
rights, as well as those of nearly all other non-Indian water users in
the basin, have already been quantified, and the settlement essentially
protects those rights from a priority call by the Tribe. In short, all
water users in the basin will benefit from our settlement, and we are
not aware of any opposition to it.
Title II of the Settlement bill codifies existing federal
protections for certain federal lands-specifically 92,364 acres of BLM
lands within the approximately 217,037 acres of combined federal, Zuni
trust, private and state lands that are referred to as the Zuni Salt
Lake and Sanctuary. Title II also provides for the transfer of 4,756
acres of BLM land to the Tribe, which transfer will be subject to all
existing rights, including the rights of the current grazing lessee. As
requested, we reached out to ranchers who either lease or own land
within the Sanctuary, and to the County Commissions of both Catron and
Cibola counties, to inform them of the proposed settlement and
specifically the additional protections that the settlement bill will
provide for the Lake and Sanctuary lands.
The settlement is the culmination of over twenty-five years of
study, litigation and negotiations. Your leadership, and the assistance
of your staff, particularly Austin Yager, is greatly appreciated, and I
look forward to working with you and your office in getting H.R.
8951passed by Congress so that our community has a secure water future.
We will, of course, respond promptly to any questions or concerns
that you or your staff may have as the legislative process proceeds.
Sincerely,
Arden Kucate,
Governor
______
Mr. Vasquez. This settlement was necessary because, for far
too long, the United States has failed Zuni in the protection
of its rights. For hundreds of years, upstream development
depleted the Zuni River, putting Zunis' agriculture at risk and
straining an already arid region. To help right this wrong, the
legislation provides nearly $685 million to implement common-
sense projects, including irrigation infrastructure
improvements, water and wastewater treatment projects,
watershed protection, groundwater storage, and economic
development projects.
In addition, the bill recognizes the Tribe's senior water
rights in a manner that honors tribal sovereignty by providing
Zuni the ability to manage their water rights for agriculture,
commercial, residential, and other uses.
It is also important to note that the settlement includes
protections for non-Indian water users in the basin, so that
all New Mexicans will benefit from this critical agreement.
Finally, the bill implements permanent protections for the
sacred Zuni Salt Lake. For those of you who have never been to
the Zuni Salt Lake, it is truly a special location of sacred
importance to the Zuni people and other New Mexico tribes. The
home of the Salt Mother, the minerals at the Salt Lake are used
by Zuni, Laguna, Acoma, and other regional tribes for
ceremonial events and other purposes, and it is essential that
this area be protected from development or other environmental
threats. This legislation would protect over 90,000 acres of
Federal land in and around the Zuni Salt Lake, and also move
4,756 acres into trust for Zuni to ensure that all sacred areas
are included within the protected boundaries.
The U.S. Government has a trust responsibility to the Zuni
people, and this legislation takes a critical step towards
fulfilling that promise by providing for the codification of
Zunis' water rights and protection of their sacred lands.
I also want to acknowledge my support for the Rio San Jose
and Rio Jemez Water Rights Settlements Act, which provides for
over $800 million for the pueblos of Acoma and Laguna to
develop water infrastructure and repair the Acomita Dam. I want
to express my appreciation to Governor Randall Vicente, who is
with us as well here today and testifying on this legislation.
This is another critical bill for my constituents, and I
appreciate the opportunity to work alongside Representative
Leger Fernandez to introduce this and support our shared tribal
partners.
The legislation before the Committee today would fully
honor the United States' obligation to the tribes in my
district and throughout New Mexico. We must pass these bills.
Thank you, and I yield back, Mr. Chairman.
Mr. Bentz. The Chair recognizes Congressman Zinke for 5
minutes.
STATEMENT OF THE HON. RYAN ZINKE, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF MONTANA
Mr. Zinke. Thank you, Mr. Chairman, Ranking Member Huffman,
and members of the Subcommittee, and thank you for holding this
hearing today to fulfill our treaty obligations.
As a former Secretary, water compacts are one of the most
complex of all instruments. And it was agreed to do a compact
rather than lawsuits. And the compact is an agreement really
between the Nation as a sovereign Nation, our government, and
the state. And I am an absolute champion and advocate for
getting these things done. In Montana, we have two done and
sealed, and this is the third. And, believe me, you have my
full support for getting it done.
I would also like to begin by introducing President Jeff
Stiffarm from the Fort Belknap Indian Community. I can tell you
the President has been a tireless leader for his people and a
staunch advocate for completing this settlement.
And I am also honored to be called ``Wowonga Intacha''.
That is my adopted Assiniboine name.
Also in the audience today, we have representing the
Blackfeet Nation, Councilmember Mike Comes at Night, and we
welcome Mike and his wife. I am unique in this in that I
represent the Blackfeet in Montana, but I am also adopted
Assiniboine. And as a former Secretary, I honor the tradition
and honor the Nations as a full partner and equal. So, in that,
we are going to get these things done.
This bill improves infrastructure and provides needed
economic development. And as far as the Belknap Tribe, for
those that are not familiar with it, it is about 7,000 enrolled
members, and the reservation is over 775,000 acres. So, that is
bigger than most states.
This bill also includes $300 million for repair of the
Saint Mary's Canal and Dobson Dam system. For those not
familiar with it, it broke. It was a 1906 syphon that brings
water from one basin to another. And without it, Indian Country
and northern Montana is dry.
My bill is nearly identical to Representative Rosendale's
bill, with one exception. My bill looks at the treaty
obligations and corrects a wrong with the Blackfeet Nation for
upstream water interests, and that needs to be addressed, and
it is.
So, with that, Mr. Chairman, I am honored to be here before
you, and you have my assurance that I will do everything within
my power to make sure this compact is successful and we meet,
as the United States and Congress, our obligations.
With that, Mr. Chairman, I yield back.
Mr. Bentz. The Chair recognizes Congressman Rosendale for 5
minutes.
STATEMENT OF THE HON. MATT ROSENDALE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MONTANA
Mr. Rosendale. Thank you very much, Chairman Bentz and
Ranking Member Huffman, for holding this extremely important
hearing.
The Fort Belknap water rights settlement is a significant
milestone that Montanans have been working on for over 20
years, providing crucial upgrades to the water systems across
the Hi-Line and for the tribes.
This bill will affirm the Fort Belknap Indian community's
water rights, settle the water rights damages against the
United States, and provide essential mitigation for non-Indian
water users, especially in light of the recent events.
Just a month ago, the Saint Mary Canal experienced a
catastrophic failure of a siphon in the Montana community of
Babb. More than 18,000 of my constituents rely on this water
for potable use, and now the water source is no longer
available. The Bureau of Reclamation currently estimates that
these residents and irrigators across Montana Hi-Line will be
without a reliable water source until the fall of 2025. These
communities will have to depend on runoff to recharge their
water towers and reservoirs until the Bureau of Reclamation
repairs are completed over a year from now.
While this bill will not accelerate the repair timeline, it
will at the very least lessen the burden on those citizens and
irrigators who are without reliable water for the foreseeable
future. As it stands, the BOR plan allocates $70 million for
the canal repairs, with the local cost share amounting to
approximately $34 million, of which $26 million is interest
bearing, further increasing the burden on our local
communities. This bill will eliminate this burdensome fee, and
ensure significant upgrades to the system which is well over
100 years old, so local communities no longer need to fear
another collapse that would leave them without water in the
future.
And we just had a flume that blew out about 3 years ago on
this exact same system. Again, this is over 100 years old.
Importantly, this bill will settle the Fort Belknap Indian
community's claims against the United States for its failure to
protect, manage, and respect the Tribe's water rights. These
long-standing claims will be addressed through funding that
will provide the tribes with critical water infrastructure
projects throughout the reservation. These projects include the
modernization of irrigation systems, new systems to provide
clean and secure wastewater removal, and water to support fish
and wildlife on the reservation.
I am extremely pleased that we finally have a full
consensus throughout the entire state regarding this important
bill, and want to emphasize its importance to all of Montana.
While I am glad to see Fort Belknap Indian Community reaching
an agreement for their water rights, I am equally excited for
the economic stability and resource reliability this bill will
provide for every citizen throughout the Hi-Line.
It is wonderful to see so many familiar faces in the crowd
today, which shows how far we have come over the past 20 years
in getting this compact done. I look forward to hearing from
all of our great Montana witnesses today and this Committee's
support finally getting these important fixes passed into law.
Thank you, Mr. Chair, and I yield back.
Mr. Bentz. The Chair recognizes Congressman Ciscomani for 5
minutes.
STATEMENT OF THE HON. JUAN CISCOMANI, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Mr. Ciscomani. Thank you, Chairman Bentz and Subcommittee
members, for allowing me to testify in support of my bill, H.R.
8940, the Northeastern Arizona Indian Water Rights Settlement
Act, and for holding this critical hearing today.
And thank you, as well.
First off, Mr. Chair, I would like to request unanimous
consent to submit the testimony of Mr. Buschatzke, the Director
of Arizona Department of Water Resources; Ms. Leslie Meyers,
the Chief Water Executive and the Associate General Manager of
Water Resources for Salt River Project; and Ms. Brenda Burman,
General Manager of Central Arizona Water Conservation District.
Mr. Bentz. Without objection.
[The information follows:]
Statement for the Record
Thomas Buschatzke, Director
Arizona Department of Water Resources
on H.R. 8940, Northeastern Arizona Indian Water Rights Settlement
Act of 2024
I. Introduction
My name is Thomas Buschatzke. I am the Director of the Arizona
Department of Water Resources. Thank you for the opportunity to provide
written testimony on behalf of the State of Arizona on the Northeastern
Arizona Indian Water Rights Settlement Act of 2024 (Act). The State of
Arizona strongly supports this important legislation, which approves
and authorizes a settlement of the water rights claims of the Navajo
Nation, Hopi Tribe, and San Juan Southern Paiute Tribe in Arizona,
ending decades of litigation and bringing much needed safe and reliable
water supplies to all three Tribes.
II. Importance of settling Indian water rights claims in Arizona
There are 22 federally recognized Indian Tribes within Arizona. The
total area of all tribal land in Arizona is approximately 20 million
acres, which is second only to tribal landholdings in Alaska. Over one
fourth of Arizona is tribal land. Indian tribes have some of the oldest
and largest claims to water in the State based on the federal reserved
rights doctrine articulated in Winters v. United States.
Eleven \1\ of the 22 federally recognized Indian Tribes in Arizona
still have unresolved water rights claims, including the claims of the
Navajo Nation, Hopi Tribe, and San Juan Southern Paiute Tribe, which we
are seeking to settle through the Act. Resolving tribal water rights
claims through settlement is a priority for the State. Settlement
avoids the cost and uncertainty of litigation and provides certainty to
both tribal and non-tribal communities in the State regarding available
water supplies. In many cases, including here in the Act, settlement
also provides critical funding for the water treatment and delivery
infrastructure necessary to bring water to tribal nations and their
members. Such infrastructure development often also enables much needed
economic development projects.
---------------------------------------------------------------------------
\1\ This number includes the Hualapai Tribe whose settlement was
approved by Congress in 2022. The post-legislation amended and
conformed Hualapai Tribe Settlement Agreement is anticipated to be
executed by all parties later this year. This number also includes the
San Carlos Apache Tribe and the Tohono O'odham Nation, whose claims
have been partially settled. The other federally recognized Tribes with
outstanding claims in Arizona are: the Havasupai Tribe, Kaibab Band of
Paiute Indians, Pascua Yaqui Tribe, Tonto Apache Tribe, and Yavapai
Apache Nation.
---------------------------------------------------------------------------
III. In General: Navajo Nation's, Hopi Tribe's and San Juan Southern
Paiute Tribe's water rights claims
The Navajo Nation, Hopi Tribe, and San Juan Southern Paiute lands
cover approximately 18,087.728 square miles in Arizona. All three
Tribes have asserted claims to in-state surface water and groundwater
for their lands. The Navajo Nation and the Hopi Tribe have also
asserted claims to water from the Colorado River in both the Lower and
Upper Basins. These water rights claims are some of the largest
outstanding tribal water rights claims in Arizona.
The State of Arizona and key stakeholders \2\ in the State have
been involved in discussions with the Navajo Nation and Hopi Tribe to
settle their water rights claims since the 1980s. Federal legislation
authorizing a settlement of both Tribes' claims to the Little Colorado
River in Arizona was introduced in Congress in 2012. However, that
legislation was never enacted. Negotiations actively resumed in late
2023, with the San Juan Southern Paiute Tribe joining the negotiations
earlier this year.
---------------------------------------------------------------------------
\2\ Arizona State Land Department, Arizona Game and Fish
Commission, Arizona Department of Transportation, Cities of Flagstaff,
Winslow and Holbrook, Towns of Taylor, Snowflake, Show Low, Eagar,
Springerville, and St. Johns, Salt River Project, Central Arizona Water
Conservation District, Arizona Public Service Corporation, Atkinson
Trading Company, Inc., U.S. Department of the Interior (will sign after
being directed to by the Act) and numerous water districts, water
companies and landowners in the Little Colorado River Basin.
---------------------------------------------------------------------------
After tireless efforts by representatives of the three Tribes, the
State, municipalities and numerous other non-tribal water users, a
comprehensive settlement of all the water rights claims of the three
tribes in Arizona has been reached in the Northeastern Arizona Indian
Water Rights Settlement Agreement (Settlement Agreement).
Under the terms of the settlement, the Tribes will receive the
right to use all surface water from the Little Colorado River and its
tributaries flowing on their Reservations and all Underground Water
beneath their Reservations, with certain limitations described below.
``Underground Water'' is defined in the Settlement Agreement and Act as
all water beneath the surface of the Earth, within the State, other
than Effluent and Colorado River Water.
The Navajo Nation and the Hopi Tribe will receive a total of 47,000
acre-feet of the State's annual 50,000 acre-foot apportionment of Upper
Basin Colorado River water. Arizona's Upper Basin Colorado River water
is the highest priority Colorado River water in the Upper Basin. The
Navajo Nation will also receive Fourth Priority Lower Basin Colorado
River water, and a portion of the Hopi Tribe's existing entitlement to
Fourth Priority Lower Basin Colorado River water associated with land
owned by the Hopi Tribe in La Paz County, Arizona.
The Act authorizes the Navajo Nation and the Hopi Tribe to divert
their Upper Basin and Lower Basin Colorado River water supplies
anywhere in the Upper or Lower Basin in Arizona, including Lake Powell,
and use the water on or off their Reservations anywhere in the Upper or
Lower Basin in the State. The Navajo Nation will also have the right to
divert its Upper Basin and Lower Basin Colorado River water supplies in
New Mexico and Utah for use in Arizona.
The Act authorizes the Navajo Nation and the Hopi Tribe to use,
lease, exchange and store their Upper and Lower Basin Colorado River
supplies on or off their Reservations in both the Upper and Lower
Basins of the State. The Act also authorizes the Navajo Nation to store
its Upper and Lower Basin Colorado River supplies in the Navajo
Reservoir and Frank Chee Willeto, Sr. Reservoir in New Mexico for use
in Arizona.
The three Tribes, and the United States as trustee for the Tribes,
Navajo Allottees and Hopi Allottees, will waive claims for: (1)
additional water rights for existing lands; (2) injury to water based
on changes in or degradation of the salinity or concentration of
naturally occurring chemical constituents contained in water; and (3)
injury to their water rights with certain exceptions. Those exceptions
include retention of the right to make claims for injury caused by: (A)
certain new surface water uses by means of direct diversion; (B) new
reservoirs and reservoir enlargement (with limited exceptions); and (C)
withdrawals of groundwater from certain wells within Buffer Zones
adjacent to the southern and western boundaries of the Navajo
Reservation (described below).
The Act provides for a limited waiver of sovereign immunity by the
Tribes and the United States acting as trustee for the Tribes, the
Navajo Allottees and the Hopi Allottees, so that they can be joined in
actions involving the interpretation or enforcement of the Settlement
Agreement and Act brought by the parties to the Settlement Agreement
and landowners and water users in the Little Colorado River Watershed
and the Gila River Watershed. The Tribes have consented to this limited
waiver of sovereign immunity.
The Act approves, ratifies and confirms a treaty entered into by
the Navajo Nation and the San Juan Southern Paiute Tribe in 2000 to
settle land claims and other disputes between the Tribes, and an
addendum to the treaty entered into by the Tribes in 2004.
Additionally, the Act creates a reservation for the San Juan Southern
Paiute Tribe, consisting of two non-contiguous areas in Arizona and
Utah, within the boundaries of the Navajo Reservation. The Act and the
Settlement Agreement resolve water rights claims only for the portion
of the San Juan Southern Paiute Tribe Reservation in Arizona, known as
the ``Southern Area.''
The Act provides $5 billion dollars in federal funding primarily
for the construction, operation, maintenance and replacement of various
water projects on the three Reservations, including a major pipeline to
bring the Colorado River water from Lake Powell to the Navajo
Reservation and the Hopi Reservation. The funding also includes money
for the Navajo Nation and Hopi Tribe to use to purchase land within the
State and associated Lower Basin Colorado River Water Rights.
A. Settlement Provisions Concerning the Navajo Nation
1. The Navajo Nation will have unlimited rights to withdraw
Underground Water within the boundaries of its Reservation.
However, the Navajo Nation and Hopi Tribe have entered into
an Inter-Tribal Agreement (the terms of which are included
in the Settlement Agreement), which limits withdrawals of
Underground Water from the N-aquifer, one of two aquifers
beneath the Reservations, to protect aquifer storage and
certain washes and springs on the Reservations.
Two buffer zones are established along the southern and western
boundaries of the Navajo Nation Reservation. Buffer Zone 1,
which extends two sections from the Navajo Reservation's
boundary, and Buffer Zone 2, which extends an additional
four sections from the southern and western boundaries of
the Reservation. In Buffer Zone 1, the Nation retains the
right to challenge new wells with a pump capacity greater
than 35 gallons-per-minute (gpm) that cause injury to its
groundwater rights. In Buffer Zone 2, the Nation retains
the right to challenge new wells with a pump capacity
greater than 500 gpm that cause injury to its groundwater
rights.
2. The Navajo Nation will have the right to divert and deplete any
surface water from the mainstem of the Little Colorado
River and its tributaries that reaches its Reservation,
including quantified amounts and priority dates for
specific historic Navajo irrigation projects totaling
40,780 acre-feet per year (afy).
3. The Navajo Nation will have the right to use water on lands held
in fee by the Nation in accordance with State law, and the
right to use water on lands held in trust for the Nation as
permitted by applicable law.
4. The Navajo Nation will receive an allocation of 44,700 afy of the
State of Arizona's annual 50,000 acre-foot apportionment of
Upper Basin Colorado River water, which is the highest
priority Colorado River water in the Upper Basin. This
water may be used on and off the Navajo Nation Reservation
anywhere in the Upper and Lower Basin in Arizona. The
Navajo Nation will have the right to use the Colorado River
and the San Juan River in the Upper Basin to convey its
Upper Basin Colorado River water from the Upper Basin for
use in the Lower Basin of the State.
5. The Navajo Nation will receive an allocation of 3,500 afy of
previously unallocated Fourth Priority Lower Basin water
from the State of Arizona's annual Lower Basin entitlement.
This water may be used anywhere in the Upper and Lower
Basins in the State.
6. The Navajo Nation will also receive an allocation of 100 afy from
the Hopi Tribe's existing contract for Fourth Priority
Lower Basin water currently being used for agricultural
purposes along the mainstem of the Lower Basin Colorado
River. This water may be used anywhere in the Upper and
Lower Basins in the State.
7. The Navajo Nation will be authorized to divert its Upper Basin
and Lower Basin Colorado River water supplies anywhere in
the Upper or Lower Basin in Arizona, including Lake Powell.
The Navajo Nation will also have the right to divert its
Upper Basin and Lower Basin Colorado River water supplies
in New Mexico and Utah for use in Arizona.
8. The Navajo Nation will be authorized to lease, exchange and store
its Upper Basin and Lower Basin Colorado River water
anywhere within the Upper and Lower Basins in the State.
The Nation will also be authorized to store the water in
the Navajo Reservoir and Frank Chee Willeto, Sr. Reservoir
in New Mexico for use in Arizona.
9. The Navajo Nation will have the right to use all effluent
produced on the Navajo Reservation, off-reservation lands
held in trust for the benefit of the Navajo Nation, and
lands owned in fee by the Navajo Nation.
B. Settlement Provisions Concerning the Hopi Tribe
1. The Hopi Tribe will have unlimited rights to withdraw Underground
Water within the boundaries of its Reservation. Withdrawal
of Underground Water from the N-aquifer, however, is
limited in certain parts of the Reservation pursuant to the
Inter-Tribal Agreement between the Navajo Nation and Hopi
Tribe referenced above.
2. Off-reservation groundwater pumping is subject to restrictions in
Buffer Zones 1 and 2 and subject to a separate agreement
with the Navajo Nation and other parties.\3\
---------------------------------------------------------------------------
\3\ The separate agreement is titled ``Certain Agreements Among The
United States, The Hopi Tribe, The Navajo Nation, Bar T Bar, And The
Arizona State Land Department Concerning Underground Water And Related
Rights And Obligations In The Navajo Hopi C-Aquifer Pumping Restriction
Area And Bar T Bar Ranch'' and included as Exhibit 9.10 to the
Settlement Agreement.
3. The Hopi Tribe is entitled to divert and deplete all surface
---------------------------------------------------------------------------
water that reaches or flows within its Reservation.
4. The Hopi Tribe will have the right to use water on lands
currently held in fee by the Tribe and off-reservation
lands currently held in trust for the Tribe as described in
Exhibits to the Settlement Agreement. The Tribe will have
the right to use water on new fee lands as permitted by
State law and new trust lands as permitted by applicable
law.
5. The Hopi Tribe will receive an allocation of 2,300 acre-feet per
year of the State of Arizona's annual 50,000 acre-foot
entitlement to Upper Basin Colorado River water, which is
the highest priority Colorado River water in the Upper
Basin. This water may be used on and off the Hopi Tribe's
Reservation and trust lands in the Upper or Lower Basin in
Arizona.
6. The Hopi Tribe currently holds a contract for a total of 5,928
afy of Lower Basin Colorado River water that is used to
irrigate land owned by the Tribe along the Colorado River
mainstem in the Cibola Valley Irrigation Drainage District
in Arizona (Cibola Water). This contract includes 4,278 afy
of Fourth Priority water. Under the terms of the Settlement
Agreement, the Tribe will transfer 100 acre-feet of this
Fourth Priority contract to the Navajo Nation. The retained
Hopi Tribe Cibola Water may be used by the Hopi Tribe
anywhere within Arizona and pursuant to its delivery
contract with the United States.
7. The Hopi Tribe will be authorized to divert its Upper Basin and
Lower Basin Colorado River water supplies anywhere in the
Upper or Lower Basin in Arizona, including Lake Powell.
8. The Hopi Tribe will be authorized to lease, exchange and store
its Upper Basin and Lower Basin Colorado River water
anywhere in the Upper or Lower Basin in the State.
9. The Hopi Tribe will have the right to use all effluent produced
on the Hopi Reservation, off-reservation lands held in
trust for the benefit of the Hopi Tribe, and lands owned in
fee by the Hopi Tribe.
C. Settlement Provisions for the San Juan Southern Paiute Tribe
1. The Act creates a reservation for the San Juan Southern Paiute
Tribe consisting of two non-contiguous areas in Arizona and
Utah, within the boundaries of the Navajo Reservation. The
settlement provisions apply only to the portion of the
Reservation located in Arizona, referred to as the
``Southern Area.''
2. The San Juan Southern Paiute Tribe will have unlimited rights to
withdraw Underground Water within the boundaries of its
Reservation.
3. The San Juan Southern Paiute Tribe will have the right to divert
and deplete all surface water that reaches or flows across
its Reservation.
4. The San Juan Southern Paiute Tribe will have the right to use
water on lands held in fee by the Tribe as permitted by
State law, and the right to use water on lands held in
trust for the Tribe as permitted by applicable law.
5. The San Juan Southern Paiute Tribe will have the right to receive
up to 350 afy of water delivered from the Navajo Tribal
Utility Authority.
6. The San Juan Southern Paiute Tribe will have the right to all
effluent developed on the Southern Area of the Reservation,
off-reservation lands held in trust by the United States
for the benefit of the San Juan Southern Paiute Tribe, and
lands owned in fee by the San Juan Southern Paiute Tribe.
IV. Congressional Funding for the Northern Arizona Indian Water Rights
Settlement
The Act provides $5 billion dollars in Congressional funding for
the settlement. The majority of the funding will be deposited into
funds to be used for the construction of various water infrastructure
projects on the three Reservations, and for the operation, maintenance
and replacement costs associated with the infrastructure.
A list of projects to be funded by the Act is provided below: \4\
---------------------------------------------------------------------------
\4\ A complete list of all projects and fund accounts may be found
in Section 13 of the Act.
1. The iina ba-paa tuwaqat'si pipeline is estimated to cost $1.7
billion dollars and will be designed and constructed to
bring Colorado River water from Lake Powell to the Navajo
Nation, Hopi Tribe and San Juan Southern Paiute
---------------------------------------------------------------------------
Reservation.
2. Several Navajo Nation-specific water projects have been included
in the Settlement Agreement and Act totaling approximately
$2.4 billion dollars for the delivery of Colorado River
water, Little Colorado River water and groundwater to
communities on the Navajo Nation Reservation.
3. $390 million dollars is allocated for the Hopi Arsenic Mitigation
Project and Hopi Slide Rock Project.
4. $28 million dollars is allocated to the San Juan Southern Paiute
Tribe for groundwater development, treatment, and delivery
projects.
5. Lower Basin Colorado River water acquisition funds of $28 million
dollars and $1.5 million dollars for the Navajo Nation and
Hopi Tribe, respectively, are provided to the two Tribes
for the purchase land and associated Lower Basin Colorado
River rights within the State.
6. Agricultural conservation funds of $80 million dollars, $30
million dollars, and $300,000 dollars for the Navajo
Nation, Hopi Tribe, and San Juan Southern Paiute Tribe,
respectively, are allocated for agricultural efficiency
improvement projects and well replacement.
V. Transbasin Use, Lease, Exchange and Storage of Colorado River
Supplies
As mentioned above, the legislation authorizes the Navajo Nation
and Hopi Tribe to use, lease, exchange and store their Upper and Lower
Colorado River water supplies in both the Upper Basin and Lower Basin
in Arizona. The ability of the Hopi Tribe and Navajo Nation to utilize
these supplies in both the Upper and Lower Basins is of critical
importance to the settlement. The Navajo Nation Reservation is located
in both the Upper and Lower Basin in Arizona and the Nation must have
the ability and flexibility to utilize water supplies as it determines
necessary and practical throughout its Reservation. The Hopi Tribe
Reservation is located entirely in the Lower Basin and must have the
ability to utilize its Upper Basin and Cibola water supplies on its
Reservation. Authorization of transbasin use and leasing of Colorado
River water supplies is a critical component of the legislation that
supports the continued sovereignty and self-determination of the Navajo
Nation and Hopi Tribe by affirming their autonomy over resource
management.
Further, the ability of the Tribes to lease Colorado River water
supplies for use in either the Lower or Upper Basins in Arizona will
maximize economic opportunities for the Tribes. It will also provide
flexibility in water management for both Tribes and the State.
The Act contains accounting provisions to ensure that the Navajo
Nation's and Hopi Tribe's Upper Basin water supplies are accounted for
as Arizona's Upper Basin water regardless of the place of diversion,
use or lease of the water. Similar accounting provisions are contained
in the Act for the Tribes' Lower Basin water to ensure that those water
supplies are accounted for as Arizona's Lower Basin water regardless of
their place of diversion, use or lease.
VI. Water Delivery Contracts
During the settlement negotiations, the United States Bureau of
Reclamation informed the State and other settlement parties that water
delivery contracts for the Colorado River supplies included in the
Settlement Agreement could not be drafted within the Settlement
Agreement completion timeframe contemplated by the Tribes. Typically,
these contracts are completed and attached to a Settlement Agreement
prior to its execution and introduction of authorizing legislation in
Congress.
Because the Settlement Agreement will be executed in advance of the
completion of the water delivery contracts, several express limitations
on these contracts were included in the Settlement Agreement and the
Act. These limitations include, but are not limited to: (1) prohibiting
any alteration or reduction of the State's annual Lower Basin
apportionment; (2) prohibiting any alteration or impairment of the
State's rights, authorities, and interests under the Boulder Canyon
Project Act of 1928 or the Upper Colorado River Basin Compact of 1948;
(3) prohibiting any limitation on the State's ability to seek or
advocate changes in the Colorado River system's operating rules,
criteria, or guidelines for the State's Upper and Lower Basin
apportionments; (4) such contracts may not prejudice the interests of
the State or serve as precedent against the State in litigation; and
(5) such contracts must also provide that any Lower Basin water must be
curtailed to the same extent as other Lower Basin delivery contracts
for the same type and priority water regardless of whether used in the
Upper or Lower Basin of the State.
These water delivery contracts will be unprecedented because they
will permit the transbasin use of Upper and Lower Basin Colorado River
by the Tribes and the lease, exchange and storage of the water by third
parties in Arizona. These tools will give the Navajo Nation and Hopi
Tribe access to new markets resulting in significant economic benefits.
VII. Enforceability Date
The settlement will become enforceable, and the waivers and
releases executed by the Parties will become effective, when certain
conditions are met following enactment of the Act. Those conditions
include: (1) the entry of a Judgment and Decree by the Little Colorado
River Adjudication Court and Gila River Adjudication Court approving
the portions of the settlement applicable to those adjudications; (2)
the appropriation by Congress of $5 billion dollars and the deposit of
that money in the designated accounts for the Tribes pursuant to
section 13 of the Act; (3) amendment of the Settlement Agreement to
both conform to the Act and add as Exhibits the required water delivery
contracts between the Secretary of the Interior and the Navajo Nation
and the Hopi Tribe; and (4) execution of the amended Settlement
Agreement by the Secretary of the Interior, the Tribes, the State and
certain other parties.
If all the conditions of enforceability are not met by June 30,
2035, or such alternative later date as may be agreed upon by the
Tribes, the Secretary, and the State, the Act will be repealed and the
Settlement Agreement will be void, except that the San Juan Southern
Paiute Tribe Reservation will remain in existence.
VIII. Non-Federal Contribution
The Settlement Agreement provides 47,000 afy of the State's 50,000
afy apportionment of Upper Basin Colorado River Water to the Navajo
Nation and Hopi Tribe and 3,500 afy of unallocated Lower Basin Colorado
River water to the Navajo Nation. The Upper Basin Colorado River water
is an extremely valuable water supply because of its high priority. The
ability of the Navajo Nation and the Hopi Tribe to lease these supplies
in either the Lower or Upper Basins of the State will provide a
significant economic benefit to the two Tribes.
The Settlement will also provide the Tribes with a renewable water
supply from in-state surface water as well as unlimited use of
groundwater beneath each of the Reservations, subject to certain
limitations agreed to between the Tribes. The Settlement's restrictions
on groundwater withdrawals in Buffer Zones 1 and 2 adjacent to the
exterior boundary of the Navajo Nation Reservation will protect finite
groundwater supplies for communities on the Navajo Nation, Hopi Tribe
and San Juan Southern Paiute Tribe Reservations.
In addition, the State legislature has established three funds that
provide for the development and implementation of projects designed to
improve, protect and augment water supplies in the State, they include
the Arizona Water Protection Fund, the Long-term Water Augmentation
Fund, and the Water Supply Development Revolving Fund. State monies in
these funds are available to any tribe with qualifying projects in
Arizona. Both the Navajo Nation and the Hopi Tribes are recipients of
grant monies from the Arizona Water Protection Fund.
IX. Importance of the Legislation to the Parties and the Entire State
Enactment of the legislation is of critical importance to all the
parties to the settlement, as well as to the entire State. Settlement
of the Tribes' water rights claims will put an end to decades of
conflict and litigation over the Tribe's claims and will provide other
important benefits to the Tribes and non-tribal water users throughout
the State.
For all three Tribes, the settlement will provide reliable and
sustainable water supplies for their lands. In particular, it will
provide access to safe running water to the many households on the
three Reservations that are without that basic water service. For the
Navajo Nation and Hopi Tribe, the settlement will also provide an
economic opportunity by allowing the Tribes to lease their Colorado
River water supplies within the State. The settlement will provide a
unique benefit to the San Juan Southern Paiute Tribe by creating a
long-awaited Reservation for the Tribe from lands within the Navajo
Reservation.
For other water users in the State, the settlement will provide
water stability and security, ending decades of litigation and
uncertainty. Further, the ability of the Navajo Nation and Hopi Tribe
to lease their Colorado River water supplies across basin boundaries
within the State is of great importance to the future of the State
because it will facilitate the movement of water to extremely water-
challenged areas of the State.
X. Conclusion
The State of Arizona strongly supports H.R. 8940, the Northeastern
Arizona Indian Water Rights Settlement Act of 2024. The Act authorizes
a comprehensive settlement of the water rights claims of the Navajo
Nation, Hopi Tribe and San Juan Southern Paiute Tribe in Arizona,
including claims to the Colorado River. Settlement of the Tribes' water
rights claims is an important step in achieving the State's goal of
settling all outstanding Indian water rights claims and ensuring all
Arizona residents have access to clean, reliable, running water.
Settlement of the claims will end decades of litigation, provide
certainty to tribal and non-tribal water users throughout the State,
and at long last provide the Tribes with reliable, sustainable and safe
water supplies.
______
Statement for the Record
Leslie A. Meyers, Associate General Manager
Salt River Valley Water Users' Association
on H.R. 8940, Northeastern Arizona Indian Water Rights Settlement
Act of 2024
Chairman Bentz, Ranking Member Huffman, and members of the
Subcommittee,
Thank you for the opportunity to submit testimony in support of
H.R. 8940, the Northeastern Arizona Indian Water Rights Settlement Act
of 2024. My name is Leslie A. Meyers. I am the Associate General
Manager and Chief Water Resources and Services Executive at Salt River
Project (``SRP''), a large multi-purpose federal reclamation project
serving the water and power needs of the Phoenix, Arizona metropolitan
area. The Northeastern Arizona Indian Water Rights Settlement Agreement
(``Settlement Agreement'') is a monumental achievement and the product
of negotiations spanning over 30 years. The settlement provides the
Navajo Nation, the Hopi Tribe, and the San Juan Southern Paiute Tribe
with desperately needed water supplies and infrastructure to secure
their future. The settlement also brings certainty to water users
throughout northeastern Arizona and those along the Colorado River
regarding the allocation of a scarce resource.
About Salt River Project
Congress and the Secretary of the Interior (``Secretary'')
authorized the construction of the Salt River Federal Reclamation
Project as one of the first projects under the Reclamation Act of 1902.
The Salt River Valley Water Users' Association, an Arizona Territorial
corporation, was organized in 1903 by landowners in the Salt River
Valley to contract with the federal government for the construction of
Theodore Roosevelt Dam on the Salt River, located some 80 miles
northeast of Phoenix. In exchange for pledging their land as collateral
for the federal loans to construct Roosevelt Dam, which loans have long
since been fully repaid, landowners in the Salt River Valley received
the right to water stored behind the dam.
Today, SRP operates six dams and reservoirs on the Salt and Verde
Rivers in the Gila River Basin, one dam and reservoir on East Clear
Creek in the Little Colorado River Basin, and 1,300 miles of canals,
laterals, ditches and pipelines to deliver water to approximately 400
square miles of land in the greater Phoenix area. The dam and reservoir
system can store approximately 2.3 million acre-feet of water runoff
from the Salt and Verde River and East Clear creek systems, making SRP
the largest raw water provider in the Phoenix Metropolitan area.
C.C. Cragin Dam and Reservoir (``C.C. Cragin Reservoir''), located
on East Clear Creek in the Little Colorado River Basin, is an important
feature of the Salt River Federal Reclamation Project. Located
approximately 25 miles north of the Town of Payson, C.C. Cragin
Reservoir stores water from a 71-square-mile watershed on East Clear
Creek, a tributary to the Little Colorado River. SRP acquired C.C.
Cragin Reservoir in 2004 from Phelps Dodge Corporation as part of the
Gila River Indian Community Water Rights Settlement. Title II of the
Arizona Water Settlement Act, P.L. 108-451, specifies that up to 3,500
acre-feet of the water stored in Cragin Reservoir will be made
available for municipal and domestic uses in northern Gila County at no
cost to SRP or the Bureau of Reclamation. Water from C.C. Cragin
Reservoir is a crucial resource to meet the municipal demands of the
Town of Payson and other nearby communities, who previously relied
solely upon the area's meager groundwater resources.
In addition to water operations, SRP is also the third largest not-
for-profit community based public power utility in the country,
providing reliable, affordable, and sustainable electricity to nearly 3
million people in Arizona. SRP has a diverse energy portfolio that
includes nuclear, solar and wind, natural gas, battery storage, coal,
geothermal and hydropower. From 1969 until 2019, SRP was a part owner
and the operating agent of the Navajo Generating Station (``NGS''), a
coal fired power plant located on the Navajo Reservation in the Upper
Colorado River basin. Coal used for fuel at NGS was supplied by the
Kayenta Mine, located on land within both the Navajo and Hopi
Reservations. Members of the Navajo Nation and the Hopi Tribe were
employed at both NGS and Kayenta Mine. Over its 50-year history, water
for the operation of NGS was supplied from Arizona's annual entitlement
to Upper Basin Colorado River water. SRP also owns and operates the
Coronado Generating Station located near St. Johns, Arizona and owns
Unit 4 at the Springerville Generating Station located near
Springerville, Arizona. Both of those power plants are located in the
Little Colorado River basin and rely on local groundwater resources for
operations.
The Water Needs of The Three Tribes
The Navajo Nation is the largest Native American tribe in the
country, with a membership of more than 400,000 tribal members. The
Navajo Reservation spans 17.3 million acres in the states of Arizona,
Utah, and New Mexico. About half of the Navajo Nation tribal members
reside on the reservation. The Little Colorado River in Arizona, a
tributary to the Colorado River, traverses the Arizona portion of the
Navajo Reservation. The Navajo (``N'') Aquifer and the deeper Coconino
(``C'') aquifer underlie the reservation. The lack of dedicated water
supplies and water infrastructure are urgent problems in the daily
lives of the Navajo. Approximately 30 percent of Navajo households lack
running water and must rely on hauling water to meet their daily needs.
The Hopi Tribe's ancestral territory encompassed the entire Little
Colorado River watershed from its confluence with the Rio Puerco River
west to its confluence with the Colorado River in Arizona for many
centuries. The present-day Hopi Reservation covers approximately 3,000
square miles in the eastern part of Coconino County and the northern
part of Navajo County in northeastern Arizona. The Hopi Reservation is
bordered on all sides by the Navajo Reservation. Current tribal
enrollment is close to 15,000 members, with approximately 9,000 living
on the reservation. Surface water on the Hopi Reservation is present in
seeps, springs, wetlands, and washes. These washes are tributaries to
the Little Colorado River and are primarily ephemeral with limited
perennial reaches supplied by springs. Groundwater is essential to
ensure that the Hopi Reservation serves as a permanent and sustainable
homeland for the Hopi. Groundwater project infrastructure and access to
perennial surface water supplies are pressing needs for the Hopi Tribe.
The San Juan Southern Paiute Tribe is a small tribe located in
Northern Arizona and Southern Utah, within the exterior boundaries of
the Navajo Reservation. The portion of Tribe's community located within
Arizona is in the Little Colorado River Basin. The San Juan Southern
Paiute Tribe is an ancient tribe but did not receive federal
recognition until 1989. In the context of litigation to determine the
rights of the Tribe to lands within the Navajo Reservation, the parties
negotiated a treaty to partition the land between the two tribes. The
Navajo Nation agreed to partition 5,400 acres as the San Juan Southern
Paiute Tribe's exclusive reservation. However, Congress has not yet
ratified the treaty. Further, the San Juan Southern Paiute Tribe lacks
a dedicated source of water and the water delivery system needed to
serve the Tribe's members.
H.R. 8940 is Transformative for the Future of the Three Tribes and for
Northeastern Arizona Communities
SRP has long held that the resolution of tribal water rights claims
broadly benefits both the tribal communities receiving water and
funding, and water users throughout the basin. This is particularly
true in the context of the Settlement Agreement.
By providing water access and funding for water infrastructure to
the tribes, the Settlement Agreement and authorizing legislation will
support tribal economic growth, self-sufficiency, and sovereignty.
Resolving the water claims of the Navajo Nation, the Hopi Tribe, and
the San Juan Southern Paiute Tribe also addresses a major outstanding
item in Arizona's Little Colorado River Adjudication--a proceeding that
has been ongoing for nearly half a century. The settlement will result
in the entry of a judgment and decree adjudicating the three tribes'
claims to the Little Colorado River system and will place restrictions
on the tribes' participation in the litigation going forward.
Finally, of particular importance to SRP, the settlement confirms
SRP's right to store water in C.C. Cragin Reservoir on East Clear Creek
and deliver that water to communities in Gila County, Arizona, and
potentially the Yavapai-Apache Nation and neighboring municipalities in
Yavapai County, Arizona.
Noteworthy Benefits of the Settlement and H.R. 8940
Securing and Delivering Colorado River Water Supplies
The settlement is particularly timely in the context of ongoing
negotiations of post-2026 Colorado River operating guidelines, as the
Navajo Nation's claim to the Colorado River is among the largest
outstanding claims in that basin. Since the closure of NGS in 2019, SRP
has expressed its unwavering commitment to ensuring that the Navajo
Nation and the Hopi Tribe receive Upper Basin Colorado River water
supplies apportioned to the State of Arizona under Article III of the
Upper Colorado River Basin Compact of 1948. The Agreement and H.R. 8940
would bring this about by providing nearly 57,000 acre-feet of Colorado
River water to the Navajo Nation and the Hopi Tribe, including 47,000
acre-feet of Arizona's 50,000 acre-feet Upper Basin apportionment.
These renewable supplies would be delivered through a pipeline funded
by H.R. 8490 to the Navajo and Hopi Reservations, providing potable
drinking water to areas of the reservations currently without water or
water infrastructure.
Additional Water Delivery Projects
H.R. 8940 also includes funding for at least ten other water
delivery projects for tribal communities. The funding would make
possible the construction of groundwater projects on the Navajo, Hopi,
and San Juan Southern Paiute Reservations that are desperately needed
to deliver water to currently unserved and underserved areas. These
projects would address both infrastructure and water quality needs
existing on the reservations. Construction of these projects, along
with the Colorado River pipeline project described above, would make it
possible for individual communities on all three reservations to thrive
and grow.
San Juan Southern Paiute Reservation
H.R. 8940 ratifies and confirms the treaty between the Navajo
Nation and the San Juan Southern Paiute Tribe and permanently sets
aside the San Juan Southern Paiute Reservation. The creation of this
reservation is long overdue and will remain in effect whether or not
other components of the settlement are completed or made effective.
Agreement Between the Navajo Nation and the Hopi Tribe Regarding the
Management and Use of the N-Aquifer, Springs, and Washes
The Settlement Agreement includes an agreement between the Navajo
Nation and the Hopi Tribe regarding the management and use of the N-
Aquifer, as well as springs and washes that occur on their
reservations. This intertribal agreement also makes room for potential
joint water projects that could benefit both tribes. The tribes'
agreement on these issues was essential to reaching the overall
settlement and is illustrative of their commitment to work together as
they manage their water resources going forward.
Resolution of the Three Tribes' Claims to Little Colorado River Water
and Groundwater
All three tribes have asserted claims in the Little Colorado River
Adjudication. The Little Colorado River is a fully appropriated system,
and the claims of the tribes, which are based in part on future use
under the federal reserved rights doctrine, exceed the flow of the
river even before existing uses of water are considered. Under the
settlement, the tribes would receive surface water flows reaching their
respective reservations, as well as underlying groundwater. At the same
time, the Tribes would confirm and agree not to object to existing uses
of surface water and groundwater, as well as some future uses (within
certain parameters). These provisions bring clarity to neighboring
water users and avoids significant litigation costs, including for
SRP's water uses at its power generating plants in the basin.
Confirmation of SRP's Right to Store and Deliver Water in C.C. Cragin
Reservoir
Through the Settlement Agreement, the three tribes would confirm
and agree not to challenge or object to SRP's right to store water in
C.C. Cragin Reservoir on East Clear Creek and deliver that water to
communities in Gila County, Arizona. The three tribes' confirmation of
SRP's Cragin right also protects water deliveries from C.C. Cragin
Reservoir to the Yavapai-Apache Nation, and potentially other
communities in Yavapai County, Arizona, through the proposed Cragin-
Verde Pipeline Project from any challenge. This project, which would be
authorized by H.R. 8949, is the centerpiece of the water rights
settlement for the Yavapai-Apache Nation. The agreement by the Navajo
Nation, the Hopi Tribe, and the San Juan Southern Paiute Tribe not to
challenge or object to SRP's rights in C.C. Cragin Reservoir, which is
located in the Little Colorado River watershed, paves the way for
deliveries of Cragin water to Yavapai County.
Conclusion
The Northeastern Arizona Indian Water Rights Settlement Agreement
is critical to augmenting the water resources and infrastructure that
is so urgently needed by the Navajo Nation, the Hopi Tribe, and the San
Juan Southern Paiute Tribe. The settlement provides a foundation for
the future of these tribes, making it possible for tribal members and
their families to live, work and thrive on their reservations. The
settlement also puts an end to longstanding litigation with the tribes'
neighbors and achieves greater certainty regarding allocation of
resources in the Colorado River Basin and the Little Colorado River
Basin. SRP urges the passage of H.R. 8940 to authorize and fund the
settlement.
______
Statement for the Record
Brenda Burman, General Manager
Central Arizona Water Conservation District
on H.R. 8940, Northeastern Arizona Indian Water Rights Settlement
Act of 2024
Chairman Bentz, Ranking Member Huffman and members of the
Subcommittee, I am Brenda Burman, General Manager of the Central
Arizona Water Conservation District (CAWCD). Thank you for the
opportunity to provide the views of the CAWCD on H.R. 8940
``Northeastern Arizona Indian Water Rights Settlement of 2024'' through
this statement for the record. For the reasons I will discuss below,
CAWCD supports H.R. 8940.
Role of CAWCD in Arizona
CAWCD manages the Central Arizona Project (CAP), a 336-mile canal
system that delivers Colorado River water into central and southern
Arizona. CAWCD's service area includes more than 80 percent of
Arizona's population. The largest supplier of renewable water in
Arizona, CAWCD has a right to divert over 1.5 million acre-feet of
Arizona's 2.8 million acre-foot Colorado River entitlement each year
through the CAP to deliver water to municipal and industrial users,
agricultural irrigation districts, and Indian communities. Our goal at
CAWCD is to provide our customers with an affordable, reliable, and
sustainable supply of Colorado River water.
Background
For many decades, Navajo Nation, Hopi Tribe, San Juan Southern
Paiute Tribe (collectively the ``Tribes''), the United States, the
State of Arizona, CAWCD, and dozens of other state parties have been
involved in either litigation of, or negotiations to resolve, the
Tribes' water right claims. Those unresolved claims cast significant
water rights uncertainty across the State and left many tribal
communities without reliable access to clean drinking water. The
Northeastern Arizona Indian Water Rights Settlement of 2024, if
approved by Congress, would eliminate that uncertainty and provide
funding for the infrastructure necessary to deliver clean drinking
water supplies across each of the Tribes' reservations.
The Northeastern Arizona Indian Water Rights Settlement of 2024 is
a comprehensive settlement agreement fully and finally resolving all
the Tribes' claims to the Colorado River (including all Upper and Lower
Colorado River Basin claims in Arizona), the Little Colorado River
watershed (including all tributary watersheds and groundwater basins),
and for land owned by the Navajo Nation in Arizona, all associated
Navajo water right claims in the Gila River watershed.
Among other things, the Settlement would allocate to the Navajo
Nation 44,700 acre-feet per year (afy) of Upper Basin Colorado River
water, 3,600 afy of Fourth Priority Mainstem Lower Colorado River
Water, and allocate to the Hopi Tribe 2,300 afy of Upper Basin Colorado
River water. The Settlement would grant the Navajo Nation and the Hopi
Tribe flexibility in utilizing and managing its Colorado River supplies
including the authority to use, lease or exchange, within the State of
Arizona, the allocated Upper Basin Colorado River in the Lower Colorado
River Basin and Lower Colorado River Water in the Upper Colorado River
Basin. That flexibility is essential for ensuring clean drinking water
deliveries throughout the Reservations and provides potential state-
wide benefits.
The Settlement also allocates Little Colorado River watershed
supplies including tributary and groundwater resources to the Tribes,
providing greater certainty to Northeastern Arizona non-tribal
communities regarding the right to access, use and develop those
supplies.
These agreed upon allocations provide greater certainty for CAWCD
water users and all the parties as they plan for future water needs;
planning that is vital when faced with on-going drought and potential
reductions in available water supplies.
The water supply allocations mean little without the funding needed
for infrastructure to divert, treat and deliver these water supplies to
the reservations. According to Navajo Safe Water, a water access
coalition group comprised of Navajo agencies, federal agencies, public
health researchers and nongovernmental organizations, approximately 30%
of Navajo Nation homes currently lack access to piped water service and
rely on hauled water as their primary source of water. The requested
federal funding in this settlement will provide the infrastructure
required to deliver drinking water to homes, thereby eliminating the
need to haul water for basic needs.
Conclusion
For the reasons noted, the CAWCD Board of Directors voted
unanimously to support the settlement and H.R. 8940. Thank you for your
consideration.
______
Mr. Ciscomani. Thank you sir.
The Northeastern Arizona Indian Water Rights Settlement Act
settles the Navajo Nations', the Hopi Tribe's, and the San Juan
Southern Paiute Tribe's claims to their portion of the Colorado
River water, and establishes a homeland for the San Juan
Southern Paiute Tribe. And I would like to acknowledge the
presence of the leadership of these Nations here with us today.
Thank you for joining us.
I know they will be speaking to the Committee later today.
This settlement represents a monumental moment for the
tribes and the state of Arizona's water future as a whole. It
is hard to overstate the tireless efforts and decades of work
that all parties of this legislation have put into the
settlement. For far too long, many tribal communities in
northern Arizona have had a lack of access or no access at all
to clean drinking water. It is high time we right this wrong,
and ensure these families and communities have reliable water
resources, which is the foundation of a thriving community.
This legislation also provides significant and much-needed
Federal investment in Arizona's water infrastructure. Those of
us in the West understand that water claims are inadequate
without the infrastructure needed to move the water. Investing
in our water infrastructure is more important now than ever,
with the persistent drought affecting the Colorado River and
all communities that rely on it, as well.
Further, the bill allows for the Navajo Nation and Hopi
Tribe to lease their water, creating economic opportunities
until local demand is met and the possibility of new
partnerships between the tribes and the local governments,
farmers, ranchers, and also the business community. When this
settlement is approved by Congress, it will be a historic
achievement for Arizona, safeguarding our most precious
resource for future generations, and finally fulfilling our
obligation to our tribal neighbors.
I applaud the Committee for discussing this legislation
today, and urge the Subcommittee to swiftly move this
legislation through the Committee and to the House Floor.
Thank you. And with that, I yield back.
Mr. Bentz. Thank you. I thank the Members for their
testimony. I will now introduce our second panel.
The Honorable Bryan Newland, Assistant Secretary for Indian
Affairs with the Department of the Interior; the Honorable Jeff
Stiffarm, President of the Fort Belknap Indian Community; the
Honorable Frank White Clay, Chairman of the Crow Tribe of
Indians; the Honorable Shine Nieto, Vice Chairman of the Tule
River Indian Tribe; the Honorable Larry Phillips, Jr., Governor
of the Ohkay Owingeh Pueblo; and the Honorable Arden Kucate,
Governor of the Pueblo of Zuni.
Let me remind the witnesses that under Committee Rules,
they must limit their oral statements to 5 minutes, but their
entire statement will appear in the hearing record.
To begin your testimony, please press the button on the
microphone.
We use timing lights. When you begin, the light will turn
green. When you have 1 minute remaining, the light will turn
yellow. At the end of 5 minutes, the light will turn red, and I
will ask you to please complete your statement.
I will also allow all witnesses to testify before Member
questioning.
I now recognize Assistant Secretary Newland for 5 minutes.
STATEMENT OF THE HON. BRYAN NEWLAND, ASSISTANT SECRETARY FOR
INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR, WASHINGTON, DC
Mr. Newland. [Speaking Native language.] Thank you,
Chairman Bentz and Congresswoman Leger Fernandez. It is great
to see you this morning. My name is Bryan Newland. I have the
privilege of serving as the Assistant Secretary for Indian
Affairs at the Department of the Interior, and I want to thank
the Committee for the opportunity to present the Department's
testimony on bills concerning Indian water rights settlements.
The United States has a trust obligation to protect the
continued existence of Indian tribes. This means ensuring that
each Tribe has a protected homeland where its citizens can
maintain their tribal existence and way of life. Everyone
should understand that water is essential to meeting those
obligations.
In my written statement, I expressed the Department's
support for nine of the bills before the Committee today, but I
want to focus my oral statement on some key points in a few of
those bills. Due to other hearings and obligations, I am not
able to remain for the entirety of today's hearing. My
colleague and friend, Deputy Commissioner David Palumbo from
the Bureau of Reclamation, will provide additional testimony
and responses to your questions today.
The Northeastern Arizona Indian Water Rights Settlement Act
will provide reliable and safe water for the Navajo Nation, the
Hopi Tribe, and the San Juan Southern Paiute Tribe. This
settlement authorizes $5 billion to acquire, build, and
maintain essential water development and delivery projects. It
would also establish a homeland for the San Juan Southern
Paiute Tribe, and would allow the Navajo Nation and the Hopi
Tribe to lease their water.
Approval of this settlement would mark the resolution of
long-standing claims and conflicts over water in northeastern
Arizona, and it would be a historic milestone in our Nation's
efforts to ensure access to water for Native people in their
homelands, and it would also benefit so many others in the
drought-stricken region.
The Department supports the parties' efforts to get this
done, and strongly supports the goals and purposes of H.R.
8940. Our written statement highlights some important issues
that need to be addressed in the legislative language to ensure
the settlement can be successfully implemented. That includes
working with Congress to ensure there is enough funding
appropriated to support the projects in the bill.
But I want to be clear on the bigger picture. We are closer
than we ever have been before in reaching a final settlement,
and we are prepared to work with the sponsors, the tribes, and
other parties to address those issues so this settlement can be
enacted in this Congress. We want to fulfill our trust
obligations to the Navajo, Hopi, and San Juan Southern Paiute
people, and we will not let the perfect be the enemy of the
good.
H.R. 7240 and H.R. 8791, both titled, ``The Fort Belknap
Indian Community Water Rights Settlement Act,'' those bills
would resolve the Assiniboine and Gros Ventre Tribes' water
rights claims through a comprehensive settlement, and authorize
certain funds. The Department supports H.R. 7240, but does not
support H.R. 8791: H.R. 8791 would designate the Bureau of
Indian Affairs alone as the lead agency for implementation;
H.R. 7240 has compromised language that identifies the Bureau
of Indian Affairs, in coordination with the Bureau of
Reclamation, as the lead agency for the Fort Belknap Irrigation
Project, rehabilitation, modernization, and expansion, and this
is the Department's preferred option. Therefore, we support
H.R. 7240.
The Department is also pleased to support H.R. 8920, the
Tule River Tribes Reserve Water Right Settlement Act. I had the
opportunity to visit the Tule River Indian Reservation two
summers ago, and I saw firsthand the need for a reliable water
source on the reservation. This bill would resolve all of the
Tule River Tribe's water rights claims in California, and
ratify its water rights settlements agreement between the Tribe
and most downstream users, and it would also transfer various
lands into trust for the Tribe.
The Yavapai-Apache Nation Water Right Settlement Act
authorizes a little more than $1 billion to build and maintain
essential water infrastructure, including the Cragin-Verde
Pipeline and a surface drinking water plant. The settlement
will provide the Nation with confirmed rights to 4,600 acre-
feet of water per year, promote water conservation, and protect
the flow of the Verde River. H.R. 8949 also includes a land
exchange with the Forest Service to lands contiguous to the
Middle Verde Reservation.
The Department supports the goals of H.R. 8949, and
recognizes further discussions need to be had regarding the
cost and size and scope of this project.
Mr. Chairman and members of the Committee, I want to thank
you again for the opportunity to provide the Department's views
today, and I look forward to answering any questions you may
have.
[The prepared statement of Mr. Newland follows:]
Statement for the Record
U.S. Department of the Interior
on H.R. 1304, H.R. 3977, H.R. 6599, H.R. 7240, H.R. 8685, H.R. 8791,
H.R. 8920, H.R. 8940, H.R. 8945, H.R. 8949, H.R. 8951, and H.R. 8953
Thank you for the opportunity to present the Department of the
Interior's (Department) testimony on the following bills concerning
Indian water rights settlements.
At the core of the United States' trust and treaty obligations is
our responsibility to ensure that Indian Tribes have the right to
continue to exist in their homelands. Everyone should understand that
water is essential to meet this obligation. Without access to water in
their homelands, Tribes cannot remain in their homelands, and we cannot
fulfill our most solemn obligation to American Indian and Alaska Native
people.
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.
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.
Congressional enactment of these settlements should be considered
within the context of all Tribal priorities and the availability of all
resources. That is why the Administration encourages Congress to
consider mandatory funding for this and other pending Indian water
rights settlements, which was also requested in the 2025 President's
Budget, included in the enacted Bipartisan Infrastructure Law, and
already proposed in some of the bills we are discussing today.
H.R. 1304, Rio San Jose and Rio Jemez Water Settlements Act of 2023
H.R. 1304 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.
I. Background
A. Historical Context
Like other Pueblos in New Mexico, the Pueblos of Acoma, Laguna,
Jemez, and Zia 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 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.
B. Acoma and Laguna Pueblos and Their Water Resources
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 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 United States' establishment
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 and 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 began 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.
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.
In 1983, general stream adjudication of the Rio San Jose (to
resolve the dispute over the water rights of Acoma Pueblo and Laguna
Pueblo, as well as the Navajo Nation) was 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's and Pueblos' water rights in the Rio San Jose basin.
H.R. 1304 addresses the water rights of the Pueblos of Acoma and
Laguna. Separate legislation, H.R. 8945, addresses the rights of the
Navajo Nation.
C. Jemez and Zia Pueblos and Their Water Resources
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).
The Rio Jemez basin is an arid region of New Mexico, and drought is
a common occurrence that has impacted, and continues to impact, the
Pueblos. Recent effects of global warming and climate change are
exacerbating these effects and surface water supplies are dwindling.
Historic increases in water use by non-Indians impacted, and continue
to impact, the Pueblos' ability to access 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.
Since 1996, Jemez and Zia Pueblos and non-Indian water users have
been operating under a negotiated irrigation rotation agreement. The
lack of a reliable water supply continues to impact the Pueblos'
ability to sustain their agricultural practices and to move forward
with water development projects to benefit the Pueblos and their
members.
The general stream adjudication of the Rio Jemez (to resolve the
water rights of the Pueblos of Jemez, Zia, and Santa Ana) began in
1983. Negotiations to resolve the water rights of the Pueblos also
began in 1983. Jemez and Zia Pueblos reached a settlement of their
water rights, but the Santa Ana Pueblo has elected to continue to
litigate its water rights claims.
II. 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 in 2022, quantifying the
two Pueblos' water rights and resolving 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
settlement agreement.
Title I of H.R. 1304 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; authorize
the Secretary of the Interior to sign the settlement; 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.
Title I of H.R. 1304 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.
Title I of H.R. 1304 would also protect non-Indian water users, as
the Acoma and Laguna Pueblos would agree not to make priority calls for
their senior rights against the water rights of junior non-Indian users
in existence at the time that the settlement becomes enforceable. In
addition, the Pueblos would agree 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, Title I of H.R. 1304 would establish trust funds for both
Pueblos totaling $850 million, to be indexed. Acoma Pueblo would
receive $311.75 million, and Laguna Pueblo would receive $493.25
million. The Pueblos could use their trust funds to develop water
infrastructure on Pueblo lands 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 the benefit of 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.
III. 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 in 2022, quantifying the
rights of the Pueblos and resolving 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 settlement agreement.
Title II of H.R. 1304 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; and authorize funds to implement the settlement agreement.
Title II of H.R. 1304 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.
Title II of H.R. 1304 also protects non-Indian water users, as the
Jemez and Zia Pueblos would agree to not make priority calls for their
senior rights on all decreed water rights of junior non-Indian users.
In addition, the Pueblos would agree 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, Title II of H.R. 1304 establishes Trust Funds for both
Pueblos totaling $490 million, to be indexed, ($290 million for Jemez
Pueblo and $200 million for Zia Pueblo). The Pueblos could use their
trust funds to develop water infrastructure on Pueblo lands as they
determine necessary and on their own timeframe. Monies in the fund
could 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 the benefits of 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.
IV. Department of the Interior Position on H.R. 1304
The Department is pleased to support H.R. 1304. This bill is the
result of over three decades of good-faith negotiations to reach
consensus on key issues. The Department looks forward to continued
discussions with the U.S. Department of Agriculture (USDA), regarding
USDA's role in implementing Title I of the bill. Finally, the
Department has been working with the settlement parties on some minor
technical changes to the bill that would clarify some issues and
conform it more closely to other pending Indian water rights
settlements in New Mexico. We look forward to working with the
settlement parties and the Subcommittee on these technical changes.
H.R. 1304 is designed to meet all four Pueblos' current and long-
term needs for water by providing trust funds that could be used by the
Pueblos according to their needs and their own decisions. Rather than
committing the Pueblos or the United States to construct specific water
infrastructure projects, H.R. 1304 would allow the Pueblos to make
decisions regarding how, when, and where to develop water
infrastructure. 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.
H.R. 6599, Technical Corrections to the Northwestern New Mexico Rural
Water Projects Act, Taos Pueblo Indian Water Rights Settlement
Act, and Aamodt Litigation Settlement Act
H.R. 6599 would amend the Omnibus Public Land Management Act of
2009 and the Claims Resolution Act of 2010 to authorize funding for
deposit into the Navajo Nation Water Resources Development Trust Fund,
the Taos Pueblo Water Development Fund, and the Aamodt Settlement
Pueblos' Fund equivalent to the amounts that would have accrued to the
trust funds if the Department had the authority to invest the funds
upon appropriation.
In the 111th Congress, four Indian water rights settlements (the
Taos Pueblo Indian Water Rights Settlement Act, Pub. L. No. 111-291;
the Aamodt Litigation Settlement Act, Pub. L. No. 111-291; the Duck
Valley settlement, Pub. L. No. 111-11; and the Crow Tribe Water Rights
Settlement Act of 2010, Pub. L. No. 111-291) included provisions
authorizing an investment of monies into the settlement trust funds
after the enforceability date. The enforceability date is effective
when the Secretary finds that all conditions for the full effectiveness
and enforceability of the settlement had occurred and publishes that
finding in the Federal Register. The Northwestern New Mexico Rural
Water Projects Act, Pub. L. No. 111-11, (Navajo Settlement), also
allowed for the investment of monies into the Navajo Nation Resources
Development Trust Fund, only upon a specified date certain 10 years
after the enactment date.
These provisions prohibited the Department from investing trust
fund monies before the enforceability date or a date certain. However,
the Department mistakenly started investing trust fund monies when they
were appropriated, which was before the enforceability date. When the
Department discovered this error, the Department's Solicitor's Office
determined that the interest amounts earned prior to the date that the
funds were authorized to be invested were contrary to the
Antideficiency Act and, in accordance with 31 U.S.C. Sec. 3302, must be
returned to Treasury. The Department then returned all interest monies
accrued prior to the authorized date back to Treasury.
The issue that H.R. 6599 addresses is a provision in certain Indian
water rights settlements that prohibited investment until the
enforceability date was reached. This provision is not common in Indian
water rights settlements. Similar provisions appeared in other
settlements enacted in 2009-2010, including the Crow Tribe Water Rights
Settlement Act of 2010; the Taos Pueblo Indian Water Rights Settlement
Act; the Aamodt Litigation Settlement Act; and the Navajo-Gallup Water
Supply Project and Navajo Nation Water Rights. In each of these
settlements, funds were inadvertently invested and returned to
Treasury. The Department supported similar legislation to resolve this
issue, and thus supports H.R. 6599 to correct this issue for the
Northwestern New Mexico Rural Water Projects Act, the Taos Pueblo
Indian Water Rights Settlement Act, and the Aamodt Litigation
Settlement Act.
H.R. 8685, Ohkay Owingeh Rio Chama Water Rights Settlement Act of 2024
H.R. 8685 would approve and provide authorizations to carry out the
settlement of all water rights claims of the Ohkay Owingeh in the Rio
Chama basin in New Mexico.
I. Background
A. Historical Context
Like other Pueblos in New Mexico, Ohkay Owingeh were agricultural
people living in established villages when the Spanish explorers first
came to New Mexico. Before Ohkay Owingeh's lands became part of the
United States, they fell under the jurisdiction first of Spain, and
later of Mexico, both of which recognized and protected the rights of
the 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 Ohkay
Owingeh's rights.
B. Ohkay Owingeh and the Rio Chama
The Rio Chama, located in north-central New Mexico and to the
northwest of Albuquerque, is a major tributary of the Rio Grande. The
river originates in Colorado, just above the New Mexico border, and
runs about 130 miles to its confluence with the Rio Grande. Ohkay
Owingeh, located 28 miles north of Santa Fe, has approximately 13,244
acres in the Rio Chama, Rio Grande, and Rio Santa Cruz basins. Ohkay
Owingeh has approximately 2,880 enrolled members, of which about 2,205
reside on Ohkay Owingeh lands.
Ohkay Owingeh is located in an arid region of New Mexico, and
drought is a common occurrence that has impacted, and continues to
impact, Ohkay Owingeh lands. Since time immemorial, Ohkay Owingeh has
made use of the water in the Rio Chama basin. However, the supply of
water in the Rio Chama available to Ohkay Owingeh has been reduced over
time by diversions by neighboring non-Indian water users. Consequently,
Ohkay Owingeh is facing water shortages that impact its ability to
provide sustainable water for its current and future water needs.
Additionally, a portion of Ohkay Owingeh's lands lie within the
``bosque,'' or forested habitat, along the Rio Chama and Rio Grande,
which is of great historical and cultural significance to Ohkay
Owingeh. The bosque areas within Ohkay Owingeh's lands were altered as
a result of flood control and irrigation projects constructed by the
United States on both the Rio Chama and Rio Grande in the mid-1900s.
Recent effects of global warming and climate change are exacerbating
these effects and surface water supplies are dwindling. Ohkay Owingeh
seeks funding as part of the proposed settlement to remedy the damage
to its lands that lie within these bosque areas and to also develop
Ohkay Owingeh's water resources for various uses, including domestic
and municipal purposes for current and future population.
In the late 1940s, a general stream adjudication of the Rio Chama
was initiated in New Mexico state court and was eventually removed to
Federal District Court in 1969. Negotiations regarding potential
settlement of Ohkay Owingeh's water rights claims have been ongoing
since 2015, when the United States established a negotiation team.
II. Proposed Ohkay Owingeh Settlement Legislation
H.R. 8685 would resolve all of Ohkay Owingeh's water rights claims
in the Rio Chama basin in New Mexico; ratify and confirm the water
rights settlement agreement signed in 2023 by Ohkay Owingeh, the State
of New Mexico, and non-Indian water users; authorize the Secretary of
the Interior to sign the settlement agreement; and provide funding to
implement the settlement.
H.R. 8685 would ratify and confirm Ohkay Owingeh's water rights to
approximately 1,756 acre-feet per (AFY) from surface water and
groundwater sources. These amounts include 771 AFY of future
groundwater use for economic development and an important right to 250
AFY of water to provide for bosque health and restoration on Ohkay
Owingeh lands, as well as water to continue irrigated farming in the
Rio Chama basin.
H.R. 8685 would also protect non-Indian water users, as Ohkay
Owingeh would not make priority calls for its senior rights against
other settlement parties, owners of domestic wells and livestock
rights, and any non-signatory water users who cooperate in shortage
sharing. In addition, Ohkay Owingeh would promulgate a water code,
which would govern permitting of uses of its water; provide processes
for protests by parties affected by Ohkay Owingeh permitting decisions;
and ensure that water use under an Ohkay Owingeh permit would not
impair existing surface and groundwater rights.
Finally, H.R. 8685 would establish a trust fund totaling $745
million, to be indexed, that Ohkay Owingeh could use to develop water
infrastructure as it determines necessary and on its own timeframe.
Monies in the fund could be used for:
1. Planning, permitting, designing, engineering, constructing,
reconstructing, replacing, rehabilitating, operating, or
repairing water production, treatment, or delivery
infrastructure, including for domestic and municipal supply
or wastewater infrastructure;
2. Planning, permitting, designing, engineering, constructing,
reconstructing, replacing, rehabilitating, operating, or
repairing water production, treatment, or delivery
infrastructure, acquisition of water, or on-farm
improvements for irrigation, livestock, and support of
agriculture;
3. Planning, permitting, designing, engineering, constructing,
reconstructing, replacing, rehabilitating, operating,
monitoring, or other measures for watershed and endangered
species habitat protection, bosque restoration or
improvement (including any required cost shares for and
allowable contributions to a Federal project or program),
land and water rights acquisition, water-related Ohkay
Owingeh community welfare and economic development, and
costs relating to implementation of the settlement
agreement;
4. The management and administration of water rights; and
5. Ensuring environmental compliance for projects developed with
settlement funds.
The State of New Mexico would contribute $131 million to provide
for benefits to non-Indian water users, including $500,000 for a fund
to mitigate impairment to non-Indian domestic and livestock well users
resulting from new or changed water uses by Ohkay Owingeh.
III. Department of the Interior Position on H.R. 8685
The Department is pleased to support H.R. 8685. This bill is the
result of multiple decades of litigation and nearly a decade of good-
faith negotiations to reach consensus on key issues. H.R. 8685 is
designed to meet Ohkay Owingeh's current and long-term needs for water
by providing a trust fund to be used by Ohkay Owingeh according to its
needs and its own decisions. Rather than committing Ohkay Owingeh or
the United States to construct specific water infrastructure projects,
the bill would allow Ohkay Owingeh to make decisions regarding how,
when, and where to develop water infrastructure. H.R. 8685 would also
allow Ohkay Owingeh to restore and protect its culturally important
bosque lands. This approach to settlement is consistent with Tribal
sovereignty and self-determination, and with our trust
responsibilities, and will help to ensure that Ohkay Owingeh can
maintain its way of life.
H.R. 8920, Tule River Tribe Reserved Water Rights Settlement Act of
2024
H.R. 8920 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. Background--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.'' 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.
II. 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 Tribe's efforts to finalize plans for the
reservoir's location are ongoing. If the Tribe selects an alternative
site, the parties will need to establish operational rules, which are
relevant for delineating 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.
H.R. 8920 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;
provide a mechanism for the parties to obtain federal court approval of
a settlement that would 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.
H.R. 8920 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 H.R. 8920, 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. H.R. 8920 would also establish a process
to authorize the parties 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.
H.R. 8920 would establish a Trust Fund of $568 million, to be
indexed. $518 million of the trust fund could be used to develop water
infrastructure on its Reservation, as the Tribe determines necessary
and on its own timeframe. The remainder of trust fund ($50 million)
could only be used to pay OM&R for water projects developed by the
Tribe.
H.R. 8920 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.
III. Department of the Interior Position on H.R. 8920
The Department supports H.R. 8920.
H.R. 8920 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 its own decisions. Rather than committing
the Tribe or the United States to construct specific water
infrastructure projects, H.R. 8920 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 a viable homeland on its Reservation.
H.R. 8951, Zuni Indian Tribe Water Rights Settlement Act of 2024
H.R. 8951 would approve and provide authorizations to carry out the
settlement of certain water rights claims of the Zuni Tribe in the Zuni
River basin in New Mexico.
I. Background
A. Historical Context
Like other Pueblos in New Mexico, the Zuni Tribe were agricultural
people living in established villages when the Spanish explorers first
came to New Mexico. Before the Zuni Tribe's lands became part of the
United States, they fell under the jurisdiction first of Spain, and
later of Mexico, both of which recognized and protected the rights of
Pueblos to use water. When the United States asserted its sovereignty
over Pueblo lands in 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.
B. The Zuni Tribe and Zuni Basin Water Resources
The Zuni Tribe has approximately 448,000 acres in west-central New
Mexico, approximately 32 miles south of Gallup, New Mexico, and
approximately 15,000 acres in east-central Arizona. All of the Zuni
Tribe's main villages are in New Mexico and the Tribe has approximately
11,800 enrolled members, of which about 9,323 reside on the Tribe's
lands.
The Zuni River basin, located in west-central New Mexico, is a
tributary to the Little Colorado River. The river originates in the
western slopes of the Zuni Mountains in New Mexico and flows for about
90 miles in a southwesterly direction through the Zuni Reservation and
joins the Little Colorado River, a tributary to the Colorado River, in
Arizona.
The Zuni Tribe is located in an arid region of New Mexico, and
drought is a common occurrence that has impacted, and continues to
impact, the Tribe. Since time immemorial, the Zuni Tribe has made use
of the water in the Zuni River basin. However, the supply of water in
the Zuni River available to the Zuni Tribe has been reduced over time
from diversions by neighboring non-Indian water users, including Ramah
Dam on Cebolla Creek, which lies upstream of the Zuni Tribe. In
addition, irrigation infrastructure constructed by the Department of
the Interior many years ago needs to be rehabilitated and
reconstructed. While the Zuni Tribe has senior water rights in the
basin, it is facing water shortages that impact its ability to provide
sustainable water for its current and future water needs. Recent
effects of global warming and climate change are exacerbating these
effects and surface water supplies are dwindling. The Zuni Tribe seeks
funding as part of the proposed settlement to rehabilitate the
irrigation structures on its lands and to develop the Tribe's water
resources for various uses, including domestic and municipal purposes,
for current and future Tribal populations.
In 2001, after a failed adjudication in state court, the United
States filed suit in Federal court to adjudicate water rights in the
Zuni River basin in New Mexico. The adjudication will resolve the water
rights claims of non-Indians, the Zuni Tribe, the Navajo Nation, and
allottees.
Negotiations originally began in 1990 and were renewed in 2013,
when the United States revived its team to negotiate a comprehensive
settlement of the Tribal water rights in the Zuni River basin. The Zuni
Tribe has reached settlement of its claims in the basin, but the Navajo
Nation has not.
II. Proposed Zuni Tribe Settlement Legislation
The Zuni Tribe and the State of New Mexico executed a settlement
agreement in 2023, quantifying the rights of the Tribe and reaching
agreement on other key issues. The Ramah Land and Irrigation Company,
comprised of non-Indian water users upstream of the Zuni Tribe and the
owner and operator of Ramah Dam, signed a letter of support for the
settlement agreement in 2023, as well. The United States is not a
signatory to the 2023 settlement agreement.
H.R. 8951 would resolve all of the Zuni Tribe's water rights claims
in the Zuni River basin in New Mexico; ratify and confirm the water
rights settlement agreement among the Tribe and the State of New
Mexico; authorize the Secretary of the Interior to sign the settlement
agreement; and authorize funds to implement the settlement.
H.R. 8951 would ratify and confirm the Zuni Tribe's water rights to
approximately 24,809 acre-feet per year (AFY) from surface water and
groundwater sources on the Pueblo, as well as 22,453 acre-feet in
existing reservoir and stock pond storage. These amounts include 5,000
AFY of groundwater use for past, present, and future uses, including
economic development for the Zuni Tribe. In addition, pursuant to the
settlement agreement, the State closed both the Zuni River basin and
the Zuni Salt Lake and Sanctuary to any future appropriations of
groundwater and surface water in June and July 2023, (with the
exception of new livestock and domestic wells, which will be limited to
0.5 acre-feet per year).
H.R. 8951 would also protect non-Indian water users, as the Zuni
Tribe would agree to not make priority calls against non-Tribal
adjudicated water rights as long as the water rights holder does not
object to the Zuni's Tribe's settlement.
Finally, H.R. 8951 would establish a Trust Fund for the Zuni Tribe,
totaling $685 million, to be indexed: (1) $655.5 million in a Water
Rights Settlement Trust Account and (2) $29.5 million in a Operation,
Maintenance, & Replacement Trust Account. The Zuni Tribe could use
these Trust Funds to develop water infrastructure as it determines
necessary and on its own timeframe. Monies in the Water Rights
Settlement Trust Account could be used by the Zuni Tribe for:
1. Planning, permitting, designing, engineering, constructing,
reconstructing, replacing, rehabilitating, operating, or
repairing water production, treatment, or delivery
infrastructure, including for domestic and municipal
supply, or wastewater infrastructure;
2. Planning, permitting, designing, engineering, constructing,
reconstructing, replacing, rehabilitating, operating, or
repairing water production, treatment, or delivery
infrastructure, acquisition of water, or on-farm
improvements for irrigation, livestock, and support of
agriculture;
3. Planning, permitting, designing, engineering, constructing,
reconstructing, replacing, rehabilitating, operating,
monitoring, or other measures for watershed and endangered
species habitat protection and enhancement, land and water
rights acquisition, water-related Tribal community welfare
and economic development, and costs relating to the
implementation of the settlement agreement;
4. Ensuring environmental compliance in the development and
construction of projects under the legislation; and
5. Tribal water rights management and administration.
The State of New Mexico would contribute $1.25 million to provide
for benefits of non-Indian water users. The State's commitment includes
$500,000 for a fund to mitigate impairment to non-Indian livestock and
domestic well rights resulting from new or changed water uses by the
Zuni Tribe and $750,000 to develop monitoring programs to assess
impacts to the Zuni Salt Lake, which has significant cultural
importance to the Zuni Tribe and other Tribes and Pueblos.
There are 15 allotments within or near Zuni lands that total
approximately 2,213 acres. The water rights of these allotments would
not be settled at this time but would be adjudicated later in the on-
going adjudication. H.R. 8951 would not in any way impose any
conditions on the use of water on these allotments or alter the ability
of the United States and allottees to make water rights claims for
these lands in the future.
Title II of H.R. 8951 would provide for protections for the Zuni
Salt Lake, a lake outside the Zuni basin that has great spiritual and
cultural meaning to the Zuni Tribe and other Pueblos and Tribes in New
Mexico. The legislation would transfer approximately 4,822 acres of
land surrounding the Lake and managed by the Bureau of Land Management
(BLM) into trust for the Zuni Tribe upon the enforceability date of the
settlement. In addition, the legislation would withdraw approximately
92,364 acres of BLM land near the Zuni Salt Lake and impose various
restrictions on the management of those lands to protect the Lake and
its cultural values. The withdrawal would include all BLM lands that
are within the closure order the State of New Mexico issued in July of
2023, closing the area around the Zuni Salt Lake and Sanctuary to any
new appropriations of groundwater or surface water (with the exception
of new livestock and domestic wells, which will be limited to 0.5 acre-
feet per year).
III. Department of the Interior Position on H.R. 8951
The Department of the Interior is pleased to support H.R. 8951.
This bill is the result of decades of litigation and over a decade of
good-faith negotiations. H.R. 8951 is designed to meet the Zuni Tribe's
current and long-term needs for water by providing Trust Funds to be
used by the Tribe according to its needs and its own determinations.
Rather than committing the Zuni Tribe or the United States to construct
specific water infrastructure projects, the bill would allow the Tribe
to make decisions regarding how, when, and where to develop water
infrastructure on Zuni lands. This approach to settlement is consistent
with Tribal sovereignty and self-determination, and with our trust
responsibilities, and will help to ensure that the Zuni Tribe can
maintain its way of life.
H.R. 3977, the Navajo-Gallup Water Supply Project Amendments Act of
2023
H.R. 3977, the Navajo-Gallup Water Supply Project Amendments Act of
2023, would amend the Northwestern New Mexico Rural Water Project Act,
P.L. 111-11, Title X, Subtitle B, Part III, amended by P.L. 114-57
(together the 2009 Act). The Department supports H.R. 3977.
I. Background
The 2009 Act, which was part of the Omnibus Public Land Management
Act of 2009, approved settlement of the Navajo Nation's water rights
claims in the San Juan River Basin in New Mexico and, as the
cornerstone of the settlement, directed the Secretary (acting through
the Bureau of Reclamation (Reclamation)) to design, construct, operate,
and maintain the Navajo Gallup Water Project (Project). When completed,
the Project will provide a reliable and sustainable domestic,
municipal, and industrial water supply from the San Juan River to 43
Chapters of the Navajo Nation, including the Nation's capital of Window
Rock, Arizona; the city of Gallup, New Mexico; and the southwest
portion of the Jicarilla Apache Reservation. All of these entities are
currently relying on a shrinking supply of groundwater that is of poor
quality and is inadequate to meet present domestic water needs, let
alone projected needs.
The 2009 Act authorized an appropriation of $870 million (2007
price level), adjusted annually using engineering cost indices, to
plan, design, and construct the Project, which includes construction of
two water transmission laterals--the Cutter and San Juan Laterals. The
Department, through Reclamation, has been implementing the 2009 Act
with significant success. In October 2021, Reclamation declared
substantial completion of the Cutter Lateral, the smaller of the two
laterals, and it transferred operation, maintenance, and replacement
responsibilities for the Cutter Lateral to the Navajo Nation in June
2022. As of May 2021, the completed segments of the Project have
facilitated delivery of drinking water to 6,200 people (1,550
households) in eight Navajo chapters, including an additional 50 homes
that previously did not have drinking water. Reclamation has also made
significant progress on the San Juan Lateral and has completed over 60
percent of the features on the lateral. Reclamation and their partners
have completed or are currently constructing 285 of the 300 miles of
Project water transmission pipelines. Last year, Reclamation acquired
the San Juan Generating Station water system facilities that will
provide both construction and operation and maintenance savings,
increased operational flexibility, and reduced risks to operations for
the Project.
II. H.R. 3977 Provisions and Positions of the Department of the
Interior
H.R. 3977 would amend the Act in several ways:
Increase the authorized Project cost ceiling. H.R. 3977 provides an
additional authorization of $725.7 million to complete the Project.
This is comprised of $689.45 million to address a cost/funding cost
gap, $30 million for Navajo community connections to the Project water
transmission line, and $6.25 million for renewable energy features.
The 2009 Act's appropriation ceiling was based on a preliminary,
2007 appraisal-level design estimate rather than a feasibility level
design estimate, which is the level of estimation that Reclamation
recommends for reliability. As final design and construction of the
Project progressed, the difference between the 2009 Act's appropriation
ceiling and the costs estimated to complete the Project (Working Cost
Estimate) became apparent. At the time H.R. 3977 was introduced in July
of 2023, the indexed authorized appropriation ceiling was $1,413.7
million (October 2022 price level) but the Project Working Cost
Estimate was $2,138.4 million (October 2022 price level). After
accounting for non-Federal funding contributions from the Project
beneficiaries received through the Contributed Funds Act, Reclamation
estimates the cost/funding gap is $689.45 million. The cost increases
are based on more reliable cost estimate updates, primarily associated
with the two water treatment plants and the San Juan Lateral intake, as
well as the increased cost of heavy civil construction in remote areas
of New Mexico. Moreover, the latest Working Cost Estimate reflects the
significant inflation and market volatility, at levels not seen in 40
years, which have far outpaced projected indexing used in updating the
appropriation ceiling.
The Department supports the additional authorization contained in
H.R. 3977. The additional authorization will enable Reclamation to
complete the Project in accordance with requirements of the 2009 Act
and is reflective of Project participant's needs and the reality of
construction costs in this remote area of New Mexico. The additional
authorization of $6.25 million for renewable energy development will
enable Reclamation to construct lower cost and alternative power
generation for areas on the project (notably the Cutter Lateral) where
Colorado River Storage Project (CRSP) power is not available. This
provision also provides up to $1.25 million of the $6.25 million to
develop small hydropower generation for Project facilities to help
offset a portion of the Project's pumping costs. The additional
authorization of $30 million for community connections is critical to
the Project's success and will help ensure that water deliveries are
made to all Navajo communities within the original Project service
area. The Navajo Nation has agreed to provide an additional $60
million, approximately, of its own funding to cover the full costs of
connecting all existing Navajo communities to the San Juan Lateral.
Operation, Maintenance, and Replacement (OM&R) Waiver. H.R. 3977
provides for a $250 million OM&R trust fund for the Navajo Nation and
up to a $10 million OM&R trust fund for the Jicarilla Apache Nation,
the latter conditioned on an ability to pay analysis. The 2009 Act
includes a provision allowing the Secretary to waive, for a period of
not more than 10 years, the OM&R costs allocable to the Navajo Nation
when the Secretary determines those costs exceed the Nation's ability
to pay. Reclamation conducted an ability to pay analysis in 2020,
following Reclamation practice for evaluating the end-user's ability to
pay for municipal and industrial water systems, that concluded the
Navajo Nation did not have the ability to pay.
The Department supports establishing a $250 million OM&R trust fund
for the Navajo Nation because it will assist the Nation in paying OM&R
during the time needed to increase the customer base and economic
development necessary to support full OM&R payments. While the 2009 Act
did not provide OM&R assistance to the Jicarilla Apache Nation, the
Department supports up to a $10 million OM&R trust fund if the
allocable OM&R costs are in excess of the Jicarilla Apache Nation's
ability-to-pay.
Expand the Project service area. H.R. 3977 would also expand the
Project to serve the Navajo Nation's four chapters in the Rio San Jose
Basin (RSJB) in New Mexico and the Lupton community in Arizona to help
the Navajo Nation increase the customer base and potentially lower OM&R
costs. The proposed amendments do not include funding that would be
needed to increase the capacity of the Crownpoint Lateral, nor
additional improvements necessary to supply the RSJB.
The Department supports the expansion of the Project service area.
Cap the city of Gallup's Repayment Obligation. H.R. 3977 would cap
the city of Gallup's (City) repayment obligation at 25% of its
allocated construction costs, not to exceed $76 million. Under the 2009
Act, the City is responsible for paying between 25% to 35% of its
allocable costs, based on its ability to pay. Reclamation estimates
that this provision would reduce the City's repayment obligation by
approximately $33 million.
The Department does not oppose the cap on the City's repayment
obligation.
Project Lands Transfer. H.R. 3977 would transfer Navajo fee lands
and Bureau of Land Management lands, upon which easements have been
acquired for Project purposes, to the Navajo Nation in trust with the
condition that Reclamation would retain easements for Project
construction, operation, and maintenance. H.R. 3977 also transfers
ownership of land underlying the recently acquired San Juan Generating
Station water conveyance and storage facilities to the Navajo Nation in
trust. H.R. 3977 provides for an easement for Reclamation to continue
to carry out construction, operation, and maintenance necessary to
incorporate those facilities into the Project until title transfer
under section 10602(f) of the 2009 Act.
The Department supports the land transfer provisions of S. 1898,
which would take land into trust, exclusive of Project facilities. We
would like to make technical changes to the Bill, similar to those
contained in the amendment in the nature of a substitute to S. 1898
reported out of the Senate Committee on Indian Affairs on November 15,
2023, to clarify that Reclamation would retain ownership of Project
facilities and infrastructure on the land until transferred to the
Navajo Nation under section 10602(f) of the 2009 Act.
Deferred Construction. H.R. 3977 would authorize establishment of a
Deferred Construction Fund and execution of a deferred construction
agreement under which the Navajo Nation would acknowledge that full
capacity of several Project features will not be needed until future
demands materialize. The Navajo Nation would be able to use the
Deferred Construction Fund to construct or expand facilities as higher
demand requires over time.
The Department supports establishing a Deferred Construction Fund
because it will allow Reclamation to construct only those water
treatment and storage facilities needed to satisfy anticipated demand
over the next 20-plus years, rather than immediately beginning work on
the larger facilities that will not be needed until demand increases
substantially. This provision is fiscally conscious and minimizes OM&R
costs that would otherwise be spent on un-used Project facilities in
the first years of water deliveries while providing for the later
development of facilities to meet the Project's full build-out demand.
Extend Completion Deadline to December 31, 2029. H.R. 3977 extends
the date by which the Project must be completed to December 31, 2029.
The Department supports extending the Project completion. Necessary
design changes, including incorporating San Juan Generating Station
water system facilities into the Project, have created delays in
construction and a deadline extension is necessary to allow remaining
Project features to be completed.
Eliminate Double Taxation. H.R. 3977 would allow taxation by either
the Navajo Nation or the State of New Mexico depending on the ownership
of land underlying Project facilities. Currently, both the State of New
Mexico and the Navajo Nation have been taxing Federal contractors on
construction activities on Navajo Tribal lands.
The Department supports eliminating the double taxation that is an
additional and unnecessary cost to the Project. Reclamation estimates
that this provision will save approximately $50 million.
Non-Project Water Use in the State of Utah. While not included in
H.R. 3977, but included in the amendment in the nature of a substitute
to S. 1898 reported out of the Senate Committee on Indian Affairs on
November 15, 2023, is a provision that grants the Navajo Nation
authority to use the Navajo-Gallup Water Supply Project's San Juan
Lateral to treat, store, and convey up to 2,000 acre-feet of its
Navajo-Utah Settlement water rights (non-Project water) to Navajo
communities in southeast Utah without increasing the capacity of any
Project infrastructure in the State of New Mexico or any infrastructure
in the State of Arizona or Utah necessary to deliver water to Navajo
communities in Utah.
The Department would support the inclusion of similar language in
H.R. 3977.
In sum, the Department supports H.R. 3977, as it will allow the
Department to fulfill the commitments made in the 2009 Act to deliver
clean drinking water to the Navajo Nation and other Project
beneficiaries.
H.R. 8945, Navajo Nation Rio San Jose Stream System Water Rights
Settlement Act of 2024
H.R. 8945, the Navajo Nation Rio San Jose' Stream System Water
Rights Settlement Act of 2024, would approve and provide authorizations
to carry out the settlement of water rights claims of the Navajo Nation
in the Rio San Jose River basin in New Mexico.
I. The Navajo Nation and Rio San Jose Basin Water Resources
The Navajo Nation has approximately 298,000 enrolled members, of
which about 122,000 live in New Mexico. The Navajo Nation consists of
five agencies, further subdivided into 110 chapters. The Eastern Navajo
Agency, headquartered in Crownpoint, encompasses 31 chapters within
Western New Mexico as well as the satellite reservation areas of
To'hajiillee and Alamo. Four of the chapters, with a total estimated
population of 3,810 Tribal members, are within the Rio San Jose Basin.
These are the chapters of Smith Lake, Casamero Lake, Thoreau and Baca/
Prewitt. In addition, the satellite reservation of To'hajiilee, within
the Rio Puerco basin, has an estimated 1,424 tribal members.
The Navajo Nation is located in an arid region of New Mexico and
the chapters in the Rio San Jose Basin are primarily reliant on
intermittent surface flows and groundwater supplies. Drought is a
common occurrence that has impacted, and continues to impact, the
Tribe. The supply of water available to the Navajo Nation has been
reduced over time from extensive groundwater demands by non-Indian
water users. An estimated 30 percent of residences do not have running
water. While the Navajo Nation has water rights senior to the majority
of non-Indian users in the basin, it is facing water shortages that
impact its ability to provide sustainable water for its current and
future water needs. Recent effects of global warming and climate change
are exacerbating these effects and surface water supplies are
dwindling. The Navajo Nation seeks funding as part of the proposed
settlement to develop its water resources for various uses, including
domestic and municipal purposes for current and future Tribal
populations.
II. Proposed Navajo Rio San Jose Settlement Legislation
The Settlement would resolve all outstanding water claims in the
Rio San Jose basin in New Mexico that could be brought by the Navajo
Nation or by the United States, in its capacity as trustee for the
Nation, and would achieve finality with respect to all those claims.
Legislation (H.R. 1304) is currently pending to resolve the water
rights claims of Acoma and Laguna in the Rio San Jose basin. If both
H.R. 1304 and H.R. 8945 are enacted, all Tribal water rights claims in
the Rio San Jose basin would be resolved. H.R. 8945 would also approve
a conditional settlement of Navajo Nation claims in the Rio Puerco
basin.
H.R. 8945 would ratify and confirm the Navajo Nation's water rights
to approximately 2,355 acre-feet per year (AFY) from surface water and
groundwater sources in the Rio San Jose basin. These amounts include
638 AFY of groundwater for past and present uses, and 1300 AFY of
groundwater for future uses. Conditionally settled claims in the Rio
Puerco basin would be 506 AFY.
H.R. 8945 would also protect non-Indian water users, as the Navajo
Nation would agree to not make priority calls against certain non-
Indian water rights.
While the Navajo Nation Rio San Jose settlement would be fund-
based, the proposed Federal contribution is largely based on the
expansion of the existing Navajo-Gallup Water Supply Project and the
creation of a regional water transmission system and community
connections to bring imported water into the Rio San Jose basin. The
trust fund to be established by H.R. 8945 totals $223.271 million, to
be indexed. Of that amount, $200.271 million could be used for:
1. Acquiring water rights or water supply;
2. Planning, permitting, designing, engineering, constructing,
reconstructing, replacing, rehabilitating, operating, or
repairing water production, treatment, or delivery
infrastructure, including for domestic and municipal use,
on-farm improvements, or wastewater infrastructure;
3. Navajo Nations' water rights management and administration;
4. Watershed protection and enhancement, support of agriculture,
water-related Navajo community welfare and economic
development, and costs relating to implementation of the
settlement agreement; and
5. Environmental compliance associated with project developed with
trust funds.
The remaining trust fund money ($23 million) could only be used for
OM&R. The State of New Mexico would contribute $3 million for the
benefit of non-Indian acequia projects.
There are over 300 ``Navajo'' allotments in the basin. While the
Department believes that most of these are allotments that were issued
to individual Indians out of the Public Domain under section four of
the General Allotment Act, final historic studies have not been
completed and water rights claims have not been developed. Therefore,
it has not been possible to include these allotments in the settlement.
The water rights of these allotments would be adjudicated at a later
date in the on-going adjudication of the Rio San Jose basin. H.R. 8945
would not in any way impose any conditions on the use of water on these
allotments or alter the ability of the United States and allottees to
make water rights claims for these lands in the future.
The Department of the Interior is pleased to support H.R 8945. This
bill in combination with H.R. 1304 would settle all Tribal rights in
the Rio San Jose Basin, bringing stability to the basin for all water
users. H.R 8945 would provide funding to allow the Navajo Nation to
plan water infrastructure for the current and long-term water needs of
its people. This approach to settlement is consistent with Tribal
sovereignty and self-determination, and with our trust
responsibilities, and will help to ensure that Navajo Nation can
maintain itself in a viable homeland.
H.R. 8949, Yavapai-Apache Nation Water Rights Settlement Act of 2024
H.R. 8949, the Yavapai-Apache Nation Water Rights Settlement Act of
2024, among other things, would approve the settlement of the Yavapai-
Apache Nation and authorize construction of a water project relating to
the Nation's water rights claims. The Department supports the goals of
H.R. 8949 and is committed to working with the Nation and the Committee
to resolve the Department's concerns with H.R. 8949 as introduced.
I. Background
A. Historical Context
The ancestors of Yavapai-Apache Nation (``Nation'') have lived and
occupied lands in the Verde Valley in Arizona since time immemorial and
were well-established as a hunting, gathering, and agricultural people
before the United States secured the area from Mexico through the
Treaty of Guadalupe Hidalgo in 1848. Since 1848, pursuant to statute
and administrative action, the United States has taken into trust
approximately 1,850 acres as the Yavapai-Apache Reservation
(``Reservation''). The Reservation includes five non-contiguous
districts: the Clarkdale District, consisting of approximately 120
acres northwest of the Town of Clarkdale and the city of Cottonwood;
the Middle Verde District, consisting of approximately 1,600 acres
northwest of the Town of Camp Verde; the Rimrock District, consisting
of approximately 4 acres east of the Middle Verde District; the
Montezuma District, consisting of approximately 80 acres northeast of
the Town of Camp Verde and between the Middle Verde and Rimrock
Districts; and the Camp Verde District consisting of approximately 50
acres southeast of the Town of Camp Verde. Of the approximately 2,673
enrolled members of the Nation, approximately 750 live on the
Reservation. Current water needs on the Reservation are satisfied
through surface and groundwater. The Verde River--one of the few
remining perennial rivers in Arizona--flows through the Reservation.
B. Water Resources, Litigation, and Settlement Negotiation
The water rights of the Nation are the subject of ongoing
litigation in the Gila River general stream adjudication
(``Adjudication''). The United States claimed 4,922 acre-feet per year
(``AFY'') of surface and groundwater to satisfy the Nation's past,
present, and future needs.
Efforts to resolve the Nation's water rights through settlement
have been on-going since approximately 2008. As the Adjudication
continued, the urgency for a settlement increased. In August 2023, the
Department, Nation, and Salt River Project Agricultural Improvement and
Power District and the Salt River Valley Water Users' Association, met
and committed to intensify negotiations with a goal of reaching
agreement expeditiously.
II. Proposed Yavapai-Apache Nation Water Rights Settlement
H.R. 8949 would resolve all the water rights claims in Arizona of
the Nation; ratify and confirm the Settlement Agreement among the
Nation, the State of Arizona, and other local parties; authorize the
Secretary of the Interior to sign the Settlement Agreement; and
authorize funds to implement the settlement.
H.R. 8949 would confirm the Nation's right to divert 6,888.50 acre-
feet per year (AFY). The 6,888.5 AFY diversionary right is made up of
the Nation's entitlement to 1,200 AFY of water from the Central Arizona
Project, 3,410.25 AFY of water from the C.C. Cragin Reservoir, 684.48
AFY of water pumped on the Nation's Reservation, and water rights
acquired when certain lands were added to the Reservation.
Section 103 of H.R. 8949 would require the Secretary to plan,
design, and construct the Tu nliinichoh Water Infrastructure Project
(Project), consisting of the Cragin-Verde Pipeline Project (Pipeline)
and the Yavapai-Apache Nation Drinking Water System Project (Drinking
Water System). H.R. 8949 requires that the Pipeline be constructed to
deliver no less than 6,836.92 AFY of water from the C.C. Cragin Dam and
Reservoir for use by the Nation on its Reservation and up to an
additional 1,912.18 AFY for use by water users in Yavapai County if
they elect to contract for such water. The Pipeline would be owned by
the United States and become part of the Salt River Federal Reclamation
Project, and upon substantial completion, the Salt River Project
Agricultural Improvement and Power District and Salt River Valley Water
Users' Association (collectively, called SRP) would assume
responsibility for the care, operation, and maintenance of the
Pipeline. The cost of care, operation, and maintenance during
construction would be borne by the Secretary, and upon substantial
completion would be the responsibility of the Nation and any later to
be determined project beneficiaries. Lands within the United States
Forest Service needed for construction of the Pipeline would be
withdrawn for that purpose.
In addition to constructing the Pipeline, H.R. 8949 would require
the Secretary to plan, design, and construct the Drinking Water System,
including a water treatment plant capable of treating up to
approximately 2,250 AFY from the Pipeline, and distribution lines to
various delivery points on the Reservation. In addition, the bill would
authorize the Secretary to increase the capacity of the Drinking Water
System to treat additional water for use by communities in the Verde
Valley, if those communities pay incremental construction cost and
OM&R. Upon substantial completion, title to, and responsibility for
operation and maintenance of the Drinking Water System would transfer
to the Nation. H.R. 8949 would allow for the Nation to plan, design,
and construct the drinking water system pursuant to the Indian Self-
Determination and Education Assistance Act.
H.R. 8949 establishes a non-trust interest-bearing Implementation
Fund for use by the Secretary to plan, design and construct the Project
and to reimburse SRP for the proportional capital and costs and OM&R of
the C.C. Cragin Dam and Reservoir associated with the Cragin water
allocated to the Nation. H.R 8949 provides a combination of mandatory
and discretionary funding for construction of the Pipeline
($731,059,000 in mandatory funding) and the Drinking Water System
($152,490,000 in mandatory funding). In the event this mandatory
funding is insufficient to complete the Project, the bill authorizes
the appropriation of ``such sums as are necessary'' for completion. In
addition, H.R. 8949 authorizes the appropriation of such sums as
necessary for the OM&R of the Project until the date of substantial
completion.
H.R. 8949 establishes a trust fund of $156 million that the Nation
could use for: implementing the Settlement; expanding the drinking
water system; constructing water infrastructure, including additional
wells; planning, designing, and constructing wastewater treatment and
reuse facilities; paying OM&R; and participating in watershed
restoration activities in the Verde Valley watershed.
Under H.R. 8949, the United States Geological Service would be
required to continue to operate and maintain certain gaging stations on
the Verde River with an authorization for appropriations of ``such sums
as may be necessary'' for this purpose.
H.R. 8949 also clarifies which lands make up the Nation's existing
Reservation and identifies specific parcels to be taken into trust for
Nation and added to the Reservation.
Finally, H.R. 8949 would require the Secretary of Agriculture to
finalize a land exchange with the Nation and to ``work expeditiously''
to transfer 40 acres of Forest Service land to the Town of Camp Verde.
III. Department of the Interior Position on H.R. 8949
The Department supports the goals of H.R. 8949 and appreciates the
recent efforts of the settlement parties to reach a settlement within
an expedited timeframe. However, the Department has some concerns with,
and questions concerning, H.R. 8949. We are committed to working with
the Nation, the settlement parties, and the Subcommittee to find a path
forward on outstanding issues.
In particular, the Department has concerns with H.R. 8949's mandate
to plan, design, and construct the Project. As an initial matter, the
bill would require the Secretary to construct the Pipeline and Drinking
Water System with capacities that greatly exceed the Nation's projected
domestic, commercial, municipal, and light industrial (DCMI) needs as
contained in claims filed in the Gila River Adjudication both by the
Nation and the United States as trustee.
Additionally, the Department has significant concerns with the
requirement that the Secretary ``upsize'' the Pipeline to transport
water to be used by Verde Valley communities that have not committed to
receiving such water or paying for their fair share of the capital
costs of the Pipeline. In prior Indian water rights settlements that
provided for infrastructure to serve both Tribal and non-Tribal
communities, the non-Tribal communities committed to use and pay for a
portion of the cost of such infrastructure.
Finally, with respect to the Drinking Water System, the Department
has not had sufficient time to review plans for that system, having
just received plans from the Nation on July 9, 2024.
In addition to concerns about the size and scope of the Project,
the Department has concerns about the Project costs. The Pipeline's
design and cost are based, in part, on a Value Planning Study
(``Study'') prepared by the Department, with input from the Nation and
SRP. The purpose of the Study was not to provide a reliable estimate of
the actual costs of a project, but instead to facilitate the comparison
of various alternatives. Value planning studies use preliminary-level
cost estimates to compare the relative costs of various infrastructure
options. Value planning studies provide useful information that allows
options to be ranked according to various measures, including from
least to most expensive, but should not be used as a basis for
congressional authorization. Moreover, the Department's experience with
other infrastructure-based settlements such as Aamodt, White Mountain
Apache and Navajo-San Juan have shown significant cost increases as
planning and construction move forward. Accordingly, the Department
expects the mandatory funding provided for the Pipeline will be
insufficient and we would like work with the Nation to identify cost-
savings and alternatives to address the cost gap. With respect to the
drinking water system, the Department must evaluate the recently
received cost basis submitted by the Tribe. The authorization for
``such sums as are necessary'' raises concerns for the Department. The
Department lacks information on other aspects of the proposed
settlement and costs, along with some significant legal questions with
some provisions in the bill, and looks forward to continuing to work
with the sponsors and Tribe to resolve those issues.
In addition to the specific concerns discussed above, the
Department notes H.R. 8949 requires other technical changes.
* * *
In sum, the Department supports the goals of H.R. 8949 and commends
the Yavapai-Apache Nation and the State parties for the significant
progress made on this settlement in recent months. The Department is
committed to continuing to work with the Nation and the bill sponsors
to address the Department's concerns.
H.R. 8953, Crow Tribe Water Rights Settlement Amendments Act of 2024
H.R. 8953 would amend the Crow Tribe Water Rights Settlement Act of
2010 (Pub. L. 111-291; 124 Stat. 3097) (Settlement Act). The Department
supports H.R. 8953 and recommends an amendment to the bill, which we
have discussed with the Crow Tribe, that would ensure that trust fund
expenditures prioritize providing clean drinking water over land
acquisitions.
I. Background
The Settlement Act authorized $460 million, indexed to inflation,
as follows: $378.224 million, for the Bureau of Reclamation to plan,
design and construct two major projects on the Crow Reservation and
$81.776 million held in trust by the BIA for Settlement implementation,
O&M of the systems, and development of clean energy. The two projects
are: (1) the rehabilitation and improvement of the Crow Irrigation
Project (CIP), and (2) the design and construction of a Municipal,
Rural, and Industrial (MR&I) water system. Both projects were to be
designed and constructed as generally described in detailed engineering
reports prepared by consultants to the Tribe and cited in the
Settlement Act. In addition, the Settlement Act gave the Tribe a 15-
year exclusive right to construct hydropower facilities at the
Yellowtail Afterbay Dam, a Bureau of Reclamation facility. That
exclusive right expires in 2025.
II. Proposed Amendment
H.R. 8953 would amend the Settlement Act by establishing a non-
trust fund account to allow the Bureau of Reclamation to continue work
on rehabilitation of the CIP and a new MR&I projects trust fund to be
used by the Tribe for (i) planning, permitting, designing, engineering,
constructing, reconstructing, replacing, rehabilitating, operating, or
repairing water production, treatment, or delivery infrastructure,
including for domestic and municipal use or wastewater infrastructure;
(ii) purchasing on-Reservation land with water rights; and (iii)
complying with applicable environmental laws. The amendments do not
increase the funding for the Settlement Act but merely change the way
some funds are held and expended. If enacted as written, it is our
interpretation that while the Amendment would repeal Section 406 in its
entirety, funding for the MR&I projects trust fund would not exceed
$246,381,000, as indexed, as provided in section 414(b) of the
Settlement Act (which would be redesignated as 415(b) pursuant to H.R.
8953).
When the Settlement Act was enacted, it did not provide for the
creation of a non-trust interest-bearing account for funds appropriated
for project construction. Subsequent Indian water rights settlements
have provided for such accounts to allow funds to accrue interest while
projects are being planned, designed, and constructed. Because the
Settlement Act did not provide this authorization, the Department and
the Tribe instead opened a joint-signature account with a private bank
for the investment of settlement funds. While this has allowed the
funding to earn interest, it has come with costs associated with
maintaining a private bank account. The Tribe now seeks to establish a
non-trust interest-bearing account in Treasury so it can enjoy the
benefits of earning interest without having to pay management fees to a
private banking institution. H.R. 8953 would authorize the
establishment of a non-trust interest-bearing account in Treasury to
receive the funds already appropriated and yet to be appropriated for
CIP rehabilitation. Reclamation would continue to be the lead agency
responsible for the planning, design, and construction of CIP
rehabilitation features.
With respect to the MR&I system, H.R. 8953 would convert this
portion of the Settlement Act from an infrastructure-based settlement
to a trust fund-based settlement. H.R. 8953 would direct the Secretary
to establish in the existing Crow Tribe Water Rights Settlement Trust
Fund a new ``MR&I Projects'' account. The Tribe could then use funds
from this account for several authorized purposes: plan, design, and
construct MR&I systems; plan, design, and construct wastewater
treatment facilities; and purchase on-Reservation land with water
rights. H.R. 8953 would provide the Tribe with flexibility and
discretion to plan, design, and construct the MR&I and wastewater
systems that it believes will best serve communities on its
Reservation.
Finally, H.R. 8953 would extend by five years the period during
which the Tribe has the exclusive right to develop hydropower at the
Yellowtail Afterbay Dam, to 2030.
The Department supports H.R. 8953. Allowing the Tribe to use the
funding authorized for a large, centralized MR&I system to instead
build smaller MR&I projects will allow it to make decisions regarding
how, when, and where to develop water infrastructure on the
Reservation. This approach is consistent with Tribal sovereignty and
self-determination. We would like to work with the Tribe and the
Committee, however, to include language in H.R. 8953 to ensure that
trust fund expenditures prioritize providing clean drinking water over
land acquisitions. The expansion of the authorized uses from a single
use (MR&I) to multiple uses, including wastewater projects and
purchases of land with water rights, will necessarily reduce the amount
of funding available for badly needed drinking water systems on the
Reservation. Provisions prioritizing funding for MR&I would ensure
safe, reliable drinking water for the Tribe. After testifying on H.R.
8953's companion bill in the Senate, S. 4442, the Department
coordinated with the Tribe to provide technical assistance to the
Senate to address this concern.
H.R. 7240 and H.R. 8791, Fort Belknap Indian Community Water Rights
Settlement Act of 2024
H.R. 7240 and H.R. 8791, both titled Fort Belknap Indian Community
Water Rights Settlement Act of 2024, would each approve and provide
authorizations to carry out the settlement of the Assiniboine (Nakoda)
and Gros Ventre (Aaniih) Tribes' water rights in the State of Montana.
The Department supports resolving the Tribes' water rights claims
through a comprehensive settlement. While the Department supports H.R.
7240, introduced by Representative Rosendale, and similar legislation
that has already passed the Senate, the Department does not support
H.R. 8791.
I. Reservation and Historical Background
Congress established the Fort Belknap Indian Reservation
(Reservation) in 1888 to secure a homeland for what are now the
Assiniboine (Nakoda) and Gros Ventre (Aaniih) Tribes. This homeland in
Montana is just a small portion of the Tribes' ancestral homelands.
Not long after the Reservation was established, the Federal
Government filed a lawsuit to protect the Tribes' right to water on its
homelands. That lawsuit eventually reached the Supreme Court in 1908.
The Supreme Court determined that the establishment of the Reservation
included the senior right to water on the Reservation. Winters v.
United States, 207 U.S. 564. In its opinion, the Court explained that
the Reservation would be inadequate to fulfill the needs of the Tribes
and the policy goals of the United States ``without a change of
conditions.'' The Court also noted, [t]he lands were arid and, without
irrigation, were practically valueless.''
Winters has had far-reaching and long-lasting consequences for all
of Indian country. The case stands for the principle that the
establishment of a reservation for a Tribe includes the reservation of
waters necessary to make the reservation a livable homeland. The
Winters doctrine protects Tribal rights and homelands, safeguarding the
rights and interests of Tribes across the United States. Despite their
legal victory in Winters, Tribes of the Fort Belknap Indian Reservation
have not been able to fully put their reserved water rights to use.
Today, the Reservation is comprised of approximately 605,338 acres,
including lands held in Trust for the Tribes and allotments held in
trust for individual Indians, situated mainly in the Milk River Basin
in north central Montana. The Milk River forms the Reservation's
northern boundary. The southern boundary is from 25 to 35 miles south
of the Milk River, extending on either side of the northern crest of
the Little Rocky Mountains.
The low rainfall on most of the Reservation severely limits what
can be grown without irrigation. Not surprisingly, the major water use
on the Reservation is the Fort Belknap Indian Irrigation Project
(FBIIP). The Bureau of Indian Affairs (BIA) owns the FBIIP, which
diverts water from the Milk River and two tributaries, Threemile Creek
and White Bear Creek, and includes a 634 acre-feet (af) reservoir on
Threemile Creek. The FBIIP serves 10,475 assessed acres, 92 percent of
which are held in trust by the United States for the benefit of the
Tribes or allottees. Groundwater wells on the Reservation are primarily
used for domestic and municipal purposes and, to a lesser extent, stock
watering.
According to BIA and Tribal data, 3,351 Tribal members currently
live on the Reservation. The total Tribal membership in August 2021,
including members living off the Reservation, was 8,609. Most on-
Reservation residents reside in three main towns: Fort Belknap Agency
on the northern boundary of the Reservation, and Lodge Pole and Hays on
the southern portion of the Reservation.
The primary sources of employment on the Reservation are Tribal and
Federal government services. The main industry is agriculture,
consisting of cattle ranches, raising alfalfa hay for feed, and larger
dryland farms. The unemployment rate on the Reservation is nearly 50%,
according to a 2019 Montana State University study.
II. Proposed Fort Belknap Indian Community Settlement Legislation
In its role as Trustee, the United States filed water rights claims
for Reservation lands in the Milk River and Missouri River basins in
the ongoing statewide water rights adjudication. Since 1990, the
Tribes, State, and United States have engaged in negotiations to
resolve the Tribes' and allottees' water rights within the State. In
2001, the Montana legislature approved the Montana-Fort Belknap Indian
Community Water Rights Compact (Compact). Congressional approval is
necessary before the United States may join in the Compact.
Both H.R. 7240 and H.R. 8791 would authorize, ratify, and confirm
the Compact to the extent it is consistent with H.R. 7240 or H.R. 8791.
This would resolve the Tribes' water rights claims in Montana by
recognizing the Tribal Water Right, which is defined by and established
in the Compact. The Tribal Water Right entitles the Tribes to over
446,000 acre-feet per year (afy) of surface water, plus groundwater.
Consistent with Federal law, both bills would protect the rights of
allottees to use a portion of the Tribal Water Right for agricultural,
domestic, and related uses on their allotments. In addition to the
Tribal Water Rights provided by the Compact, both H.R. 7240 and H.R.
8791 include a 20,000 afy allocation of storage from Lake Elwell, a
Bureau of Reclamation (Reclamation) facility on the Marias River, also
known as Tiber Reservoir.
Both H.R. 7240 and H.R. 8791 would also authorize funds to
implement the provisions of the Compact and each bill, respectively.
H.R. 7240 and H.R. 8791 each would authorize Federal
appropriations--$1.34 billion or $1.17 billion, respectively--for three
general purposes: rehabilitation of the Fort Belknap Indian Irrigation
Project; administration and development of the Tribes' water rights;
and mitigation for the impacts on water users outside the Reservation.
Both bills are a mixed project- and fund-based settlement.
Both H.R. 7240 and H.R. 8791 include two specific projects that the
Department is charged with planning, designing, and constructing: (1)
the rehabilitation, modernization, and expansion of the existing FBIIP;
and (2) the rehabilitation and expansion of certain Milk River Project
facilities to satisfy the Compact required mitigation negotiated by the
Tribes and the State.
Both H.R. 7240 and H.R. 8791 authorize the appropriation of up to
$415.8 million for the rehabilitation, modernization, and expansion of
the FBIIP. The Department supports rehabilitating and expanding the
FBIIP to serve additional lands capable of sustained and economically
viable irrigation. Without further study, however, the costs of
rehabilitating and expanding the FBIIP cannot be reliably determined.
The Tribes believe that the requested authorization will cover the
costs.
Additionally, both H.R. 7240 and H.R. 8791 contain a provision
providing that the Secretary's obligations to rehabilitate, modernize,
and expand the FBIIP will be deemed satisfied if, despite diligent
efforts, the project cannot be completed as contemplated due solely to
the authorized appropriation being insufficient. Only H.R. 8791,
though, identifies the BIA as the lead agency for the rehabilitation,
modernization, and expansion of FBIIP, while providing the Tribes the
opportunity to perform these activities through self-determination
contracts. The identification of BIA as the lead agency for the
rehabilitation, modernization, and expansion of FBIIP is unusual. In
contrast, previously enacted Indian water rights settlements that have
required the Secretary to plan, design, and construct major
infrastructure have identified Reclamation as the lead agency for such
purposes. Reclamation has the staffing and expertise and a demonstrated
history of success in planning, designing, and constructing
infrastructure. For these reasons and to ensure successful
implementation of H.R. 8791, the Department does not support H.R.
8791's identification of the Bureau of Indian Affairs alone as the lead
agency. The Department supports, however, compromise language contained
in H.R. 7240 that identifies ``the Bureau of Indian Affairs, in
coordination with the Bureau of Reclamation'' as the lead agency for
FBIIP rehabilitation, modernization, and expansion.
Both H.R. 7240 and H.R. 8791 authorize the appropriation of up to
$300 million to rehabilitate and expand certain Milk River Project
facilities to implement the mitigation measures required by the
Compact. Both bills identify Reclamation as the lead agency to
implement these mitigation projects. The Department testified in the
117th Congress about practical concerns regarding its ability to
satisfy Compact provisions requiring mitigation of impacts on junior
non-Indian and Milk River Project water users caused by the development
of the Tribal Water Right. However, since the time of that testimony,
Reclamation completed modeling that identifies viable alternatives to
satisfy the Compact's mitigation requirement. Based on Reclamation's
modeling, the Department determined that rehabilitation of the St. Mary
Canal and the expansion of the Dodson South Canal will provide the
35,000 afy of mitigation required by the Compact. Again, without a
feasibility level study, reliable costs of rehabilitating and expanding
the FBIIP cannot be determined. In an effort to avoid cost gap issues,
both H.R. 7240 and H.R. 8791 provide that the Secretary's obligations
to complete Milk River Project mitigation projects will be deemed
satisfied if despite diligent efforts, the projects cannot be completed
as contemplated due solely to the authorized appropriations being
insufficient.
Because the St. Mary Canal is located on the Blackfeet Reservation,
both H.R. 7240 and H.R. 8791 require Reclamation to complete the
canal's rehabilitation in coordination with the Blackfeet Tribe.
In addition to the project-based components described above, both
H.R. 7240 and H.R. 8791 would establish a trust fund for the Tribes--in
the amount of $628.7 million or $454.2 million, respectively--to be
used for various purposes. Some of these purposes, such as the
development of domestic water infrastructure and establishment of a
Tribal water resources department to administer the Tribal Water Right,
are commonplace in Indian water rights settlements. Both bills would
specifically authorize the Tribes to use their trust fund to plan,
design, and construct a pipeline to transport Lake Elwell water from an
off-Reservation point of diversion on the Missouri River to the
southern portion of the Reservation. The Department understands that
the Tribes would be required to comply with all applicable Federal and
State laws when implementing this and all other provisions in the
settlement.
H.R. 7240 and H.R. 8791 would both also transfer 10,322.58 acres of
federal land and 3,519.3 acres of land currently owned by the Tribes
into trust for the Tribes as part of the Reservation. In addition, both
bills direct the Secretary of the Interior and the Secretary of
Agriculture to negotiate with the State to exchange certain State lands
within the boundaries of the Reservation for federal lands elsewhere in
the State.
Both H.R. 7240 and H.R. 8791 state that the United States shall not
be liable for any failure to carry out any obligation or activity
authorized by this Act if there are not enough funds available in the
Reclamation Water Settlements Fund established by section 10501(a) of
the Omnibus Public Land Management Act of 2009 (43 U.S.C. 407(a)).
Regarding this section, the Administration encourages extension of this
funding.
Summary
The Department recognizes that the Tribes and State of Montana have
worked hard to negotiate this settlement. The Department believes that
this legislation is consistent with the Administration's priorities of
protecting Tribal homelands and meeting our trust responsibility. It
would also bring meaning to the legal victory the Tribes and the United
States secured more than a century ago in Winters. For the reasons
discussed above, the Department opposes H.R. 8791.
The Department supports, instead, H.R. 7240.
H.R. 8940, Northeastern Arizona Indian Water Rights Settlement Act of
2024
H.R. 8940, the Northeastern Arizona Indian Water Rights Settlement
Act of 2024, would, among other things, approve and provide
authorizations to carry out the settlement of water rights claims of
the Navajo Nation, Hopi Tribe, and San Juan Southern Paiute Tribe in
Arizona. The Department strongly supports the goals of H.R. 8940 and is
committed to working with the Tribes and the Committee to resolve
outstanding concerns discussed below.
I. Background
A. Historic Context
The Navajo Nation, Hopi Tribe, and San Juan Southern Paiute Tribe
have occupied lands in northeastern Arizona since time immemorial.
Today, the Navajo Reservation encompasses over 17 million acres in
northeastern Arizona, New Mexico, and southeastern Utah. Approximately
10 million acres of the Navajo Reservation are within the State of
Arizona. Of the Nation's more than 330,000 members, approximately
95,000 live on the Navajo Reservation in Arizona. There are over 540
allotments within the exterior boundaries of the Navajo Reservation in
Arizona. Approximately 470 of these allotments were created out of the
public domain and issued to individual Navajo Indians under section 4
of the General Allotment Act and similar authorities. The Reservation
was later expanded to surround these public domain allotments. The
remaining allotments within the exterior boundaries of the Navajo
Reservation were created out of Reservation lands pursuant to section 1
of the General Allotment Act. In addition, there are 51 public domain
allotments issued to individual Navajo Indians located outside the
exterior boundaries of the Navajo Reservation in Arizona.
The Hopi Reservation is made up of approximately 1.5 million acres
located in Arizona and entirely within the exterior boundaries of the
Navajo Reservation. There are approximately 15,000 members of the Hopi
Tribe, of whom approximately 9,000 live on the Hopi Reservation. There
are 11 public domain allotments on the Hopi Reservation at Moenkopi.
These allotments were issued to individual Hopi Indians under section 4
of the General Allotment Act before lands at Moenkopi were added to the
Hopi Reservation.
The San Juan Southern Paiute Tribe has occupied lands within the
Navajo Reservation in Arizona and Utah since time immemorial but does
not yet have a reservation for its exclusive use. In 1986, the San Juan
Southern Paiute petitioned the Department for recognition as a
federally recognized Tribe through the Federal Acknowledgement Process.
In December 1989, the Department approved the petition and recognized
the San Juan Southern Paiute Tribe as an Indian Tribe. It is the only
so-called ``landless'' federally recognized Tribe in Arizona. In 2000,
the San Juan Southern Paiute Tribe and the Navajo Nation entered into
an inter-Tribal treaty to resolve land disputes between the two Tribes
and finally establish a Reservation, consisting of a Northern Area in
Utah and a Southern Area in Arizona, for the exclusive use and benefit
of the San Juan Southern Paiute Tribe. The inter-Tribal treaty requires
Congressional approval to become effective. H.R. 8940 would ratify and
confirm the treaty and thereby establish a 5,400-acre San Juan Southern
Paiute Reservation.
B. Water Resources of the Navajo Nation, the Hopi Tribe, and the San
Juan Southern Paiute Tribe
The Navajo Reservation in Arizona encompasses lands within the
Colorado River Basin, including approximately 5.7 million acres within
the Little Colorado River drainage, approximately 3.2 million acres
within the San Juan River drainage, and approximately 1.1 million acres
within the Colorado River Mainstem drainage. The Hopi Reservation and
proposed San Juan Southern Paiute Southern Area are located entirely
within the Little Colorado River drainage in the Lower Colorado River
Basin.
All of the Tribes rely primarily on groundwater from the Navajo
(``N'') and Coconino (``C'') Aquifers to satisfy their water needs.
Surface water is primarily used for traditional farming practices and
stockwatering; it is too unreliable to satisfy domestic and municipal
needs. Lack of access to clean drinking water is pervasive on the
Reservations. According to some estimates, up to 30% of homes on the
Navajo Reservation in Arizona lack indoor plumbing. The situation on
the Hopi Reservation and San Juan Southern Paiute lands is similar to
that on the Navajo Reservation. Many Tribal members from all three
Tribes must haul potable water to their homes to satisfy basic needs
like drinking, cooking, bathing, and cleaning. Sometimes the distances
traveled to haul water are staggering.
C. Litigation and Settlement Negotiation
Since 1979, an adjudication has been ongoing to resolve water
rights claims in the Little Colorado River drainage. Over 13,000 claims
have been filed by over 5,000 claimants. In 1988, the LCR adjudication
judge appointed a ``settlement committee'' to resolve claims for all
Tribes within the adjudication boundaries. Thereafter, in 1991, the
Department of the Interior established an LCR Negotiation Team. Over
the decades, negotiations have progressed at varying levels of
intensity and with various levels of success. Meanwhile, litigation of
the Tribes' water rights in the LCR adjudication has continued and in
recent years has increased in intensity.
Recognizing that litigation would not address the needs on the
Tribes or the interests of the State parties, on October 23, 2023,
leadership from the Navajo Nation, Hopi Tribe, Department of the
Interior, State of Arizona, and other settlement parties met in
Phoenix, Arizona and made commitments to work in good faith to reach a
negotiated water rights settlement of the Navajo Nation and Hopi
Tribe's claims to water in Arizona. By January 2024, the parties were
meeting at least once, and often multiple times, per week and were
making significant progress toward a negotiated settlement. In February
2024, the San Juan Southern Paiute Tribe began participating in the
negotiations. By late-April 2024, the Tribes and local parties had
reached agreement. In May 2024, all three Tribes passed resolutions in
support of the Northeastern Arizona Indian Water Rights Settlement
Agreement (``Settlement Agreement''). Thereafter, attorneys
representing 35 local parties, including the State of Arizona, the
Central Arizona Water Conservation District (``CAWCD''), the Salt River
Project Agricultural Improvement and Power District and the Salt River
Valley Water Users' Association (``SRP''), various Arizona cities and
towns, irrigation districts, and ranchers, delivered a letter in
support of the Settlement Agreement and proposed Federal legislation to
the Arizona Congressional Delegation. The Settlement Agreement has been
formally approved by the respective boards of SRP, CAWCD, Flagstaff
City Council, and the Arizona Game and Fish Commission.
II. Proposed Northeastern Arizona Indian Water Rights Settlement
H.R. 8940 would resolve all the water rights claims in Arizona of
the Navajo Nation, the Hopi Tribe, and the San Juan Southern Paiute
Tribe; ratify and confirm the Settlement Agreement among the Tribes,
the State of Arizona, and other local parties; establish a Reservation
for the San Juan Southern Paiute Tribe by ratifying and confirming the
inter-Tribal treaty between the Navajo Nation and the San Juan Southern
Paiute Tribe; authorize the Secretary of the Interior to sign the
Settlement Agreement; and authorize funds to implement the settlement,
including for the development of water infrastructure on the
Reservations.
H.R. 8940 would ratify and confirm the water rights of the Navajo
Nation, the Hopi Tribe, and the San Juan Southern Paiute Tribe, as
defined in the Settlement Agreement. By ratifying the Settlement
Agreement, H.R. 8940 recognizes each Tribe's rights to all surface
water and groundwater on its respective Reservation in Arizona, subject
to an inter-Tribal agreement between the Navajo Nation and the Hopi
Tribe concerning the N Aquifer, springs, and shared washes. In
addition, H.R. 8940 would allocate Arizona Colorado River Water to the
Navajo Nation and the Hopi Tribe, including Lower Basin and Upper Basin
water. Consistent with the Settlement Agreement, H.R. 8940 would
confirm the Navajo Nation's right to 44,700 acre-feet per year (afy) of
Arizona Upper Basin Colorado River water and 3,600 afy of Arizona
Fourth Priority Lower Basin Colorado River water and the Hopi Tribe's
right to 2,300 afy of Arizona Upper Basin Colorado River water and
4,178 afy of Arizona Fourth Priority Lower Basin Colorado River water.
The agreement would allow the Navajo Nation and Hopi Tribe to use these
allocations of Colorado River water on their Reservations and lease the
water in both the Upper and Lower Basins in the State of Arizona.
Finally, H.R. 8940 requires the Secretary to enter into water delivery
contracts with the Navajo Nation and the Hopi Tribe for the delivery of
these Arizona Colorado River water allocations.
H.R. 8940 would also address water rights for allotments in various
ways. With respect to the 11 Hopi allotments at Moenkopi, H.R. 8940
would ratify and confirm water rights consistent with the Special
Master's report in the Little Colorado River adjudication. The Special
Master's report largely approved the water rights claims made by the
United States on behalf of the public domain Hopi allottees at
Moenkopi. The Settlement Agreement requires the entry of a decree
confirming those rights.
H.R. 8940 would also resolve the water rights claims for allotments
of Reservation land within the exterior boundaries of the Navajo
Reservation by confirming the Navajo Section 1 Allottees' rights to a
just and equal distribution of water from the Navajo Nation's water
rights to fulfill the purposes for which the allotments were created.
H.R. 8940 would not, however, resolve the water rights claims of the
more than 520 allotments of the public domain made to Navajo Indians
both within and outside of the exterior boundaries of the Navajo
Reservation. While the Settlement Agreement makes certain limited
compromises on behalf of, and secures certain benefits to, the public
domain allotments, it does not fully resolve these rights. Instead,
Navajo public domain allotment water rights would be adjudicated later
in the Little Colorado River adjudication.
H.R 8940 would also resolve significant inter-Tribal issues such as
the management of water sources relied on by the Navajo Nation and the
Hopi Tribe and a land dispute between the Navajo Nation and the San
Juan Southern Paiute Tribe.
To address management of shared water sources, H.R. 8940 would
approve an agreement between the Navajo Nation and the Hopi Tribe
regarding shared washes, springs, and the N-Aquifer. The inter-Tribal
agreement regarding the washes and springs would allow for certain
rehabilitation and betterment of historically irrigated acres and
improvement projects to restore washes and springs. With respect to the
N-Aquifer, the Navajo Nation and the Hopi Tribe would agree to annual
pumping limits to protect the long-term viability of the N-Aquifer,
which is a vital source of water for both Tribes. H.R. 8940 would also
require the USGS to continue and expand its existing groundwater
monitoring program in the Black Mesa area. Monitoring by the USGS would
be used by the Tribes to inform future N-Aquifer management decisions.
To resolve the long-standing land dispute between the Navajo Nation
and the San Juan Southern Paiute Tribe, H.R. 8940 would ratify an
inter-Tribal treaty which establishes a Reservation for the San Juan
Southern Paiute Tribe out of lands within the Navajo Reservation. This
new San Juan Southern Paiute Reservation would consist of 5,400 acres
in Arizona and Utah. In addition, the Navajo Nation, through the Navajo
Tribal Utility Authority, agrees to provide water service to San Juan
Southern Paiute Southern Area in Arizona.
H.R. 8940 would also protect the status quo for non-Indian water
users by ratifying an agreement by the Navajo Nation, Hopi Tribe, San
Juan Southern Paiute Tribe not to object to, challenge, or assert
priority against certain off-Reservation water uses by non-Indians.
Importantly for the non-Indian parties involved, the Settlement
Agreement protects past, present, and future uses. The agreement not to
object to certain future water uses is uncommon in water rights
settlement. Here, however, the unique hydrology within the LCR drainage
minimizes on-Reservation and on-allotment impacts of off-Reservation
and off-Allotment surface water uses. With respect to off-Reservation
groundwater use, the Settlement recognizes two buffer zones within
which the Tribes and the United States, acting as trustee, retain their
right to object to, dispute, challenge, or assert priority against off-
Reservation groundwater uses if those groundwater uses do not satisfy
certain criteria. Groundwater uses that meet the specified criteria
within the buffer zones are protected from objection, dispute,
challenge, and assertions of priority by the Tribe and the United
States, as trustee. In exchange for this and other benefits, non-Indian
parties agree to some restrictions on the development of future off-
Reservation water uses and also agree not to object to certain elements
of the water rights claims to be filed on behalf of public domain
allotments outside the boundaries of the Navajo Reservation.
A centerpiece of H.R. 8940 is the iina ba-paa tuwaqat'si pipeline
(``Pipeline'') to be planned, designed, and constructed by the Bureau
of Reclamation (``Reclamation'') and substantially configured as
Alternative 5, Option B-100 of the Navajo-Hopi Value Planning Study--
Arizona (October 2020) (``Value Planning Study'' or ``Study''). H.R.
8940 provides that, upon completion, the Pipeline is to be owned,
operated, and maintained by the Navajo Nation and the Hopi Tribe
consistent with an operation agreement to be negotiated by the two
Tribes.
H.R. 8940 would authorize a Federal contribution of at least $5
billion dollars, to be indexed, toward settlement: $1.715 billion, plus
such sums as are necessary, for construction of the Pipeline and $3.285
billion for deposit in Trust Funds for the benefit of the Tribes.
As discussed in detail below, the Department expects completion of
the Pipeline to cost significantly more than $1.715 billion, thus
making the true Federal cost of H.R. 8940 currently uncertain given the
authorization for appropriation of ``such sums as are necessary.''
H.R. 8940 would establish three trust funds: Navajo Nation Trust
Fund, Hopi Tribe Trust Fund, and San Juan Southern Paiute Tribe Trust
Fund. H.R. 8940 would establish a $2,746,700,000 trust fund for the
Navajo Nation. Of this amount, $2,369,200 is allocated to plan, design,
and construct water infrastructure projects; $229.5 million is
allocated to operate and maintain projects constructed using the trust
fund; $40 million is allocated to establish renewable energy projects
to support water infrastructure projects; $80 million is allocated to
modernize infrastructure on historically irrigated land and install
livestock wells; and $28 million is allocated to purchase land with
senior water rights in the Lower Basin in Arizona.
H.R. 8940 would establish a $508,500,000 trust fund for the Hopi
Tribe. Of this amount, $390 million is allocated to plan, design, and
construct groundwater infrastructure projects, including the expansion
of the Hopi Arsenic Mitigation Project; $87 million is allocated to
operate and maintain projects constructed using the trust fund; $30
million is allocated to modernize infrastructure on historically
irrigated land and install livestock wells; and $1.5 million is
allocated to purchase land with senior water rights in the Lower Basin
in Arizona.
H.R. 8940 would establish a $29,800,000 trust fund for the San Juan
Southern Paiute Tribe. Of this amount, $28 million is allocated to
plan, design, and construct groundwater infrastructure projects on the
San Juan Southern Paiute Southern Area; $1.5 million is allocated to
operate and maintain projects constructed using the trust fund and to
offset the imputed cost of delivery of water from the Pipeline to the
San Juan Southern Paiute Southern Area; and $300,000 is allocated to
modernize infrastructure on historically irrigated land and install
livestock wells on the San Juan Southern Paiute Southern Area.
III. Department of the Interior Position on H.R. 8940
The Department of the Interior commends the work of the Hopi Tribe,
Navajo Nation, San Juan Southern Paiute Tribe, and the State of Arizona
to resolve longstanding water claims. The Department strongly supports
the goals of the legislation and is committed to working with the
Tribes, Committee, and settlement parties to address outstanding issues
in H.R. 8940 as currently drafted to ensure its implementation. The
parties have made significant progress with H.R. 8940 and the
Department believes this settlement is on a trajectory to completion
this term.
Federal Contribution
H.R. 8940 establishes an Implementation Fund to be used by the
Secretary, acting through the Bureau of Reclamation, to plan, design,
and construct the Pipeline. H.R. 8940 provides $1.715 billion in
mandatory appropriations for this purpose. If the Pipeline cannot be
completed for $1.715 billion, H.R. 8940 authorizes the appropriation of
such funds as may be necessary to address the cost gap. This
authorization of such sums as are necessary raises significant concerns
for the Department. The amount of mandatory funding for the Pipeline
included in H.R. 8940 is based on a Value Planning Study completed by
the Department, with input from the Navajo Nation, and the Hopi Tribe.
Value planning studies are not intended to provide a true or accurate
estimate of the actual cost of project construction. Instead, Value
planning studies use preliminary-level cost estimates to compare the
relative costs of various infrastructure options. Value planning
studies provide useful information that allows options to be ranked
according to various measures, including from least to most expensive,
but should not be used as a basis for congressional authorization.
Moreover, the Department's experience with other infrastructure-based
settlements such as Aamodt, White Mountain Apache and Navajo-San Juan
have shown significant cost increases as planning and construction move
forward. With a substantial cost gap expected and a Pipeline completion
deadline of 2040, the Department has significant concerns about the
implications of covering the cost gap from its discretionary budget.
Further, the Department would highlight that completion of the pipeline
by the deadline of 2040 would prove challenging given the complexity of
the infrastructure and agreements, as well as the uncertainty in costs.
While H.R. 8940 allows the Tribes to use their trust funds to
supplement funding for the Pipeline, whether to do so is left to the
Tribes' discretion. Thus, whether the trust funds would be used for
this purpose is uncertain. The Department would appreciate the
opportunity to work with the Tribes and the Committee to identify
alternatives to addressing the anticipated cost gap.
Operations Agreements
H.R. 8940 provides that ownership, operation, and maintenance of
the Pipeline will transfer to the Navajo Nation and the Hopi Tribe upon
substantial completion. The bill further provides that the Tribes must
enter into an operations agreement, to be approved by the Secretary, as
a condition of substantial completion. The Department supports the
requirement that the Tribes enter into a Secretarially-approved
operations agreement for operation of the Pipeline. However, as
drafted, H.R. 8940 would allow construction of the Pipeline to begin
before the execution of an operations agreement. The execution and
approval of such an operation agreement (or agreements) should be
required before the Department begins construction of the Pipeline as
postponing this agreement until after construction begins introduces
additional risk to the project and would reduce flexibility to make
modifications necessary to help reach agreement between the Tribes and
the Department.
Navajo Nation Tribal Water Code
Tribal management of water resources on Reservations is essential
to sovereignty. The Department supports and encourages this exercise of
sovereignty, including with respect to the rights of Reservation
allottees, provided that certain protections are guaranteed to the
allottees.
Many enacted water rights settlements recognize the right of
allottees to a just and equal distribution of water to serve the
purposes of the allotment and require the Tribe to enact tribal water
code provisions that guarantee this right and provide a process by
which allottees may request a distribution of water. Water code
provisions enacted to satisfy these conditions become effective only
after Secretarial approval. In contrast, while recognizing the rights
of Reservation allottees to a just and equal distribution of water, H.R
8940 provides that ``if necessary,'' the Navajo Nation will amend its
water code to provide enumerated protections to Reservation allottees.
H.R. 8940 is ambiguous as to who determines whether it is ``necessary''
for the Navajo Nation to amend its code. The Department recommends that
H.R. 8940 be revised to require the Navajo Nation to amend its water
code to provide necessary protections to Allottees and that those water
code provisions not become effective unless approved by the Secretary.
Colorado River Operations
Consistent with the Settlement Agreement, H.R. 8940 provides for
the allocation of Arizona Colorado River Water to the Navajo Nation and
the Hopi Tribe. The agreement would allow the Navajo Nation and Hopi
Tribe to use these allocations on their Reservations and lease water in
both the Upper and Lower Colorado River Basins in the State of Arizona,
allowing for the storage of water within Arizona, the transportation of
water through the Central Arizona Project (CAP), as well as storage of
Navajo Nation water in Navajo Reservoir and Frank Chee Willeto, Sr
Reservoir, subject to certain conditions.
H.R. 8940 further authorizes the Secretary to enter into Colorado
River water delivery contracts with the Navajo Nation and the Hopi
Tribe subject to several requirements, limitations, and conditions, and
authorizes the Secretary to use the mainstream of the Colorado River
and the San Juan River to transport and deliver settlement water.
Subject to approval by the Secretary, and in accordance with all
applicable Federal and State laws, the Tribes would be authorized to
lease and exchange the Colorado River water allocations in the Upper
and Lower Basin, for use both on- and off-reservation, within the State
of Arizona.
H.R. 8940 provides for the Secretary to account for the water
deliveries as part of the settlement. The means by which the Secretary
would account for this water is novel and Reclamation will need time to
better understand the implementation of the accounting language as
written. The Department would like the opportunity to make technical
modifications to ensure consistency with Reclamation's accounting of
Colorado River water, including participation in water conservation
efforts, to ensure application would be in line with the parties'
intent.
As a general matter, the Department supports the key principles of
Tribal equity, Tribal sovereignty, and Tribal self-determination.
Clean, reliable drinking water is critical to upholding these
principles. We are committed to addressing the lack of clean, reliable
drinking water in Tribal communities. Additionally, we support the
opportunity for all Tribes to enjoy cultural, spiritual, and economic
benefits from their water rights. In keeping with these principles and
commitments, the Department supports the inclusion within the
settlement and allowance for the Tribes to use, store, and lease
Colorado River water as provided for in H.R. 8940. These rights and
provisions are similar in concept to the rights to lease CAP water in
Arizona granted to Tribes under various Indian water rights settlements
in Arizona and consistent with principles of self-determination and
Tribal sovereignty. We would like to work with the Sponsor and
Committee on technical amendments regarding Colorado River operations
and accounting.
Navajo-Gallup Amendments
HR 8940 provides authority to meet the purposes of the settlement
by diverting water through the Navajo-Gallup Water Supply Project,
including through the San Juan Lateral. These diversions through the
Pipeline and the Navajo-Gallup Water Supply Project facilities are
intended to address critical tribal and non-Indian Water supply needs
in areas that otherwise lack of other reasonable alternatives. The
Department supports the inclusion of these provisions, however the
Northwestern New Mexico Rural Water Projects Act, P.L. 111-11, limited
the size of the San Juan Lateral. In order to implement and meet the
additional purposes of H.R. 8940, technical modifications are necessary
to provide authority to increase the capacity of key components of the
San Juan Lateral as well as modifications to expanding the service area
to allow for water deliveries to additional areas in northeastern
Arizona.
Energy Acquisition
Section 6(g) of H.R. 8940 provides that the amounts of energy
needed to deliver water to the Tribes shall be acquired by the Tribes.
As drafted, H.R. 8940 makes the Tribes responsible for acquiring energy
needed for the Secretary to construct the Pipeline. In the event the
Tribes are not able to acquire adequate energy for Pipeline
construction, the Secretary would be unable to fulfill her obligations
under the Settlement. The Department recommends that the Pipeline be
exempted from Section 6(g) and the responsibility to secure energy for
the Pipeline remain with the Secretary until title transfers to the
Tribes.
Miscellaneous
While this testimony highlights the most pressing of the
Department's concerns with H.R. 8940, it is important to note that
Departmental review of H.R. 8940 and the Settlement Agreement is
ongoing. Given the complexity of this Settlement, it is reasonable to
expect additional drafting concerns to be identified through this
review process.
* * *
In sum, the parties have worked together to resolve longstanding
claims in a way that would benefit all the people of Arizona, Navajo
Nation, Hopi Tribe, and San Juan Southern Paiute Tribe. The Department
is committed to reaching a conclusion as proposed by H.R. 8940 and
supports nearly all of the key terms in this legislation. The
Department will work with the sponsors and the parties to resolve
outstanding issues so that we can bring these claims to a positive
resolution and fulfill our trust responsibility by delivering water to
Tribal members in their homelands.
______
Mr. Bentz. Thank you, Assistant Secretary Newland. I now
recognize President Stiffarm for 5 minutes.
STATEMENT OF THE HON. JEFFREY STIFFARM, PRESIDENT, FORT BELKNAP
INDIAN COMMUNITY, HARLEM, MONTANA
Mr. Stiffarm. Good morning, Chairman Bentz, Vice Chairman
Kiggans, Ranking Member Huffman, and Congresswoman Leger
Fernandez. My name is Jeff Stiffarm. I am the President of the
Fort Belknap Indian Community, which is the home of the Aaniiih
and Nakoda people, Assiniboine, and Gros Ventre. I am a member
of the Gros Ventre Tribe. My name given to me is Storm Coming
at You on the Gros Ventre side, and on the Assiniboine side I
was given the name of Holy Eagle Spirit Man. I come to you to
represent my namesakes, and to speak for my people back home
for our water.
I want to thank Congressman Zinke for inviting me to the
table to address our issues with our settlement, and thank the
support of Councilman Mike Comes at Night for coming here and
supporting us as we support the Blackfeet Nation.
We sit here with all these tribal leaders and these Tribal
Nations that are here to discuss their water issues and their
relatives here. Chairman White Clay of the Crow Nation and what
they are trying to do, and the rest of these tribal leaders
here and what they are trying to get done with their water. It
has been a long road for all of us that are sitting here, and
others yet to come after us, as we move forward. We have been
working on this for 40 years.
And I know you mentioned the Winters Doctrine in your
opening comments. The Winters Doctrine was born and bred on
Fort Belknap when they sued the Federal Government over water
in 1908 which led the way for tribes to get their rightful
place and for their water. And I would like to thank you for
mentioning that. The Winters Doctrine was born on Fort Belknap.
Our ancestors had the foresight to do that over a century ago.
But I want to thank Congressman Rosendale for introducing
this bill also, and thank him for his leadership as we move
forward with this and trying to get this done finally.
Our bill is kind of a big number as you look at it, but it
is all for infrastructure, and $300 million is for the Saint
Mary's. As Congressman Rosendale spoke about, that siphon
broke, and it is going to dry up Milk River along the Hi-Line,
and it is going to affect a lot of communities, not only Fort
Belknap, but all up and down the Hi-Line. And that area of the
state is all agriculture, farmers and ranchers and
municipalities that depend on water for their usage.
But I would like to remind the Committee this is a Fort
Belknap Indian Community settlement, and it is our treaty of
1855, what we need to stand by to look at the future of our
children and our grandchildren as we go forward so they will
have life, they will be able to live in comfort as we do today.
I want to remind everybody, it was said in here too that
water is life, not only for the two-legged, but for the ones
that feed us, that take care of us, the animal life, the plant
life, things like that. As you look forward, look down the road
with the settlement that we have, we need to remember that the
big number that is there is not that big when you look at how
much money that the Federal Government gives overseas, to
countries to fight wars and to kill people, and we are asking
for the money to save our people.
I want to thank you all for listening to us, and you are
going to take care of not only our people at Fort Belknap, but
the rest of these tribal leaders who are here to represent for
you, for their children, too. And I want to thank you for
listening to us and listening to the few words I have to say
for our people. Thank you. [Speaking Native language.]
[The prepared statement of Mr. Stiffarm follows:]
Prepared Statement of Jeffrey Stiffarm, President, Fort Belknap Indian
Community
on H.R. 7240 and H.R. 8791
Chairman Bentz, Vice Chair Kiggans, Ranking Member Huffman, and
Honorable Members of the Subcommittee on Water, Wildlife and Fisheries,
my name is Jeffrey Stiffarm and I serve as President of the Fort
Belknap Indian Community (FBIC) Council of the Fort Belknap Reservation
(Reservation). I appreciate the opportunity to testify in support of
H.R. 7240, the ``Fort Belknap Indian Community Water Rights Settlement
Act of 2024'' and H.R. 8791, which is also entitled the ``Fort Belknap
Indian Community Water Rights Settlement Act of 2024.'' Both of these
nearly identical bills would quantify our water rights and settle our
damages claims against the United States.
The only difference between the bills is that H.R. 8791 includes
funding for water distribution and waste water treatment facilities for
the Blackfeet Tribe. We support the Blackfeet Tribe obtaining funding
for water infrastructure on their reservation needed to serve their
members. We also appreciate the Subcommittee's consideration of their
water infrastructure needs. While Congress sends billions in aid to
other countries and people overseas, many Indian tribes and tribal
members still live without basic water infrastructure. The United
States' fulfillment of its treaty and trust responsibilities is long
overdue and we support Congressional investment in tribal water
infrastructure needed to fulfill these obligations. However, to clarify
for the Subcommittee, the funding and infrastructure for the Blackfeet
Tribe included in H.R. 8791 is not a part of the FBIC's water rights or
damages claims that we negotiated with the United States and the State
of Montana.
The version of our Water Rights Settlement Bill (Bill) included in
H.R. 7240 has already passed the Senate twice. Our Bill first passed
the Senate on July 27, 2023, as Division K of S. 2226, the National
Defense Authorization Act (NDAA). The Senate then passed our Bill a
second time as a standalone bill, S. 1987, on June 20, 2024. The Senate
passed our Bill a second time because our Bill includes $300 million
for the federal Milk River Project to mitigate the impact of the
development of our Indian reserved water rights on the non-Indian state
water users on the Milk River. This includes funding for the
restoration, rehabilitation, and repair of the St. Mary Diversion Canal
which provides water for communities and irrigation across northcentral
Montana, including our Fort Belknap Reservation. The St. Mary Canal
System recently suffered an emergency catastrophic blowout creating a
water shortage on the Milk River for 2024 that will continue into 2025,
and the Senate quickly passed our Bill to support repair and upgrades
for this critical water infrastructure. Through the passage of either
H.R. 7240 or H.R. 8791 all of these commitments will be fulfilled.
We are grateful for the strong support of the full Montana
Congressional Delegation including Senator Tester, Senator Daines,
Congressman Rosendale, and Congressman Zinke. We are also grateful for
the support of Montana Governor Gianforte and the Biden Administration.
Our Bill is also supported by local governments, irrigators, and
conservation organizations. About 40 years ago, we began working to
develop and negotiate a bipartisan bill that would settle our Indian
water rights, improve our agricultural economy, provide for our
homelands, and benefit surrounding communities and water users. We
respectfully request that the Subcommittee take action to finally and
swiftly approve our Water Rights Settlement Bill and support passage by
the House of Representatives.
Brief History of the Gros Ventre and Assiniboine Tribes and the
Reservation
The Gros Ventre and Assiniboine Tribes (Tribes) comprise the Fort
Belknap Indian Community of the Fort Belknap Reservation in the State
of Montana. Through a series of treaties and agreements with the United
States, Congress established our current and final, permanent homeland
in 1888, the Fort Belknap Reservation for the Gros Ventre and
Assiniboine Tribes.\1\ Since 1905, the United States Supreme Court
recognized that a ``treaty was not a grant of rights to the Indians,
but a grant of right from them.'' \2\ The Assiniboine and Gros Ventre
Tribes, as recognized governments, retained and reserved the sovereign
rights not granted to the United States--including our water rights.
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\1\ Agreement of May 1, 1888, 25 Stat. 113 [hereinafter ``1888
Agreement''].
\2\ United States v. Winans, 198 U.S. 371, 381 (1905).
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The 1888 Agreement, which passed by Congress, required the
relinquishment of most of our Tribes' ancestral territory and resulted
in a significant reduction in the lands that the Tribes could occupy
and use. The federal purpose of the 1888 Agreement continued the policy
of establishing an agricultural economy for the Tribes. The Agreement
expressly stated that the Tribes would ``obtain the means to enable
them to become self-supporting, as a pastoral and agricultural
people[,]''--creating an agricultural Reservation economy. Funds were
provided for the purchase of cows, bulls, and other stock, and
agricultural implements, among other purchases, and for ``undertak[ing]
the cultivation of the soil.'' \3\
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\3\ 1888 Agreement at Articles III, V.
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In these negotiations, our ancestors were forced to cede millions
of acres of their ancestral lands and resources. In return, through the
Treaty of 1855, the 1888 Agreement, and other agreements, the United
States promised to provide and support an agricultural economy that
would sustain our Tribes on our reserved homelands. Irrigation began on
our Reservation in 1889. By 1898, the Tribal members were irrigating
about 30,000 acres on the Milk River, which forms the northern boundary
of our Reservation, for grain, grass, and vegetables. Congress
authorized the construction of irrigation systems on the Reservation,
now known as the Fort Belknap Indian Irrigation Project.
However, non-Indian, upstream irrigators were soon depleting our
main water supply, the Milk River. The United States, our trustee,
protected a portion of our Indian water supplies and went to court to
defend our right to water for our Reservation. In 1908, the U.S.
Supreme Court concluded that the lands of the Fort Belknap Reservation
were ``practically valueless without irrigation--a barren waste[,]''
Winters v. United States,\4\ and established the ``Winters Doctrine.''
The Indian reserved water rights began with our Reservation, and we are
the ``Winters Tribes.'' Under the Winters Doctrine, the ``the Federal
Government's reservation of land for an Indian tribe also implicitly
reserves the right to use water . . . to accomplish the purpose of the
reservation.'' Arizona v. Navajo Nation case (U.S. Supreme Court, June
22, 2023).\5\
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\4\ Winters v. United States, 207 U.S. 564, 576 (1908).
\5\ Arizona v. Navajo Nation, Case No. 21-1484, 2023 WL 4110231, at
*3 (S.Ct. June 22, 2023) (internal citation omitted).
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Despite actions in Winters v. United States, over the next 100 plus
years, the United States failed to fulfill many of its promises and
commitments, including protecting and preserving our waters. Because of
a failure by the Federal Government to maintain and complete
construction of our federal Indian Irrigation Project, we are currently
irrigating only about 10,000 acres of our irrigable lands. It is time
for Congress to ratify our historic Indian water rights and approve our
Water Rights Settlement Bill, which will provide us the ability to
develop and use our Indian water rights for our agricultural lands and
to provide clean and safe drinking water for our people.
Montana Water Court Adjudication
In the 1970s, the Montana started a general stream adjudication of
all water rights through the Montana Water Court.\6\ The Montana State
Legislature also set up a process that would allow tribes to negotiate
their water rights with the State instead of litigating them through
the State Water Court. The negotiations process was carried out through
the Montana Reserved Water Rights Compact Commission (Commission). In
1981, the FBIC Council chose to negotiate and settle its Indian water
rights with the State and United States. In 1990, the FBIC stipulated
to stay proceedings in pending lawsuits in the federal court of Montana
and the pending adjudication in the Montana Water Courts.
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\6\ The following historical information is taken from a Briefing
Paper (June 2000) in the Montana Reserved Water Rights Commission
archives (author unknown).
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However, the State Legislature ended the activities of the
Commission in 2013 and set a deadline for all remaining Indian reserved
water rights claims to be filed with the Water Court by June 30, 2015.
The United States, as our trustee, filed the FBIC water claims on
behalf of the FBIC. Our water rights claims, therefore, are before the
Montana Water Court, and it is currently uncertain when the Court will
initiate the adjudication of our claims. However, an adjudication of
these claims after decades of negotiations, an agreed-upon Water
Compact, and a proposed Water Rights Settlement Bill before Congress
would be tragic for all Parties now--resulting only in a ``paper water
right'' for the FBIC, with no ability to develop and benefit from our
Indian water. Therefore, time for Congressional approval of our Water
Rights Settlement is of the essence.
In short, litigation of Indian water rights is a lengthy and costly
process, with an uncertain outcome--for everyone. In recent years,
Montana Lt. Governor Juras also joined in support of settlement over
litigation and has testified before Congress in support of our water
rights settlement. We are seeking a settlement that provides us with
``wet water,'' with sufficient funding to settle our claims and allow
for the development and use of our Indian water rights. That is the
promise of settlement over litigation.
History of Settlement Negotiations
We came to the bargaining table in good faith that our Federal
Negotiations Team was fully participating as the trustee over what is
our most valuable natural resource--water. In the 1980s, we chose
settlement over litigation with the State and Federal governments when
we initiated negotiations with the Commission and our assigned
Department of the Interior, Federal Negotiations Team, and the
Secretary's Indian Water Rights Office (SIWRO). Negotiations among
FBIC, the State, and the United States were conducted in earnest from
the 1990s until 2023.
The Commission conducted no fewer than 20 meetings between 1997-
2000 throughout our region, known as the Hi-Line area of north central
Montana, for public information and input on the proposed Water
Compact. The Commission documented over 18 negotiating sessions with
the FBIC and Federal government between 1990-2000. In addition,
substantial public information and drafts of the Water Compact were
distributed through numerous public and FBIC outlets.\7\ This extensive
public and tribal information effort led to the overwhelming bipartisan
approval of our 2001 Fort Belknap-Montana Compact (Water Compact) by
the Montana State Legislature (over 90% approval).\8\ The FBIC Council
also approved the Water Compact.
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\7\ This information is taken from the Montana Water Rights
Commission archives, provided by the State.
\8\ Mont. Code Ann. Sec. Sec. 85-20-1001 through 85-20-1008
(ratified on Apr. 16, 2001).
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Our Water Rights Settlement Bill is based on long-standing,
historical principles of federal policy for the reserved water rights
of Indian people that ensure we will receive the full benefit of the
water rights promised to us in treaties and agreements with the United
States. These principles include (1) recognition of a reservation of
water for reservation homelands and the promise of assistance in
establishing an agricultural economy when valuable tribal lands were
ceded to the United States; (2) a method of quantifying our Indian
water rights based on the practicably irrigable acreage (PIA) of the
reservation; and (3) the importance and obligation of the United States
to honor its treaty promises and keep its word to assist us with the
establishment of a viable agricultural economy in order to create a
permanent homeland. As noted here, this includes the court-approved
principles of practicably irrigable acreage (PIA) to quantify the
volume of our Indian reserved water rights.\9\
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\9\ Arizona v. California, 373 U.S. 546 (1963), decree entered, 376
U.S. 340 (1964) (quantifying the tribes' Winters water rights on the
basis of practicably irrigable acreage (PIA), holding that PIA is the
only fair and feasible way to determine the measure of an Indian
reservation water right.); See also, e.g., 2006 Anderson Paper at 429
(``Most important is the fact that in the era of negotiated Indian
water settlements, PIA is the one component that can be objectively
evaluated and thus serves as a cornerstone for the settlement
framework.''; Greely v. Confederated Salish & Kootenai Tribes, 219
Mont. 76, 712 P.2d 754 (1985); and In re General Adjudication of All
Rights to Use Water in Big Horn River System, 753 P.2d 76 (Wyo. 1988);
aff'd by equally divided court per curium, Wyoming v. United States,
492 U.S. 406 (1989), cert. denied, Shoshone Tribe v. Wyoming, 109 S.C.
3265 (1989).
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Overall, our Indian Water Rights Settlement Bill is structured to
promote economic development and efficiency on our Reservation and our
Tribal self-sufficiency.\10\ It is an agricultural infrastructure
development plan and includes infrastructure to develop and ensure
clean and safe drinking water to end water insecurity on our
Reservation. It provides for the FBIC to develop, administer, use,
manage, and enforce our reserved water rights and improve the poor
economic condition of our members on the Reservation. This is an Indian
water settlement--where 97% of our Reservation lands are trust lands,
held by the United States for the benefit of the FBIC and our
allottees.\11\ Our Fort Belknap Indian Irrigation Project and other
Reservation irrigated lands serve primarily the trust lands of Indian
people.
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\10\ See 1990 Criteria and Procedures for Participation of Federal
Government in Negotiating for Settlement of Indian Water Rights Claims,
55 Fed. Reg. 9223-9225 (Mar. 12, 1990) [hereinafter ``1990 Criteria''].
\11\ Montana Budget & Policy Center, Policy Basics: Taxes in Indian
Country Part 2: Tribal Governments (Nov. 2017), (citing Tribal Nations
in Montana: A Handbook for Legislators, 2016).
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FBIC Water Rights Settlement is an Infrastructure Bill
Funding in our Water Rights Settlement Bill will go toward
supporting and developing long overdue traditional infrastructure
investments, including the development of both agricultural and
domestic water supplies, that the United States promised to the Gros
Ventre and Assiniboine Tribes. The Aaniiih Nakoda Settlement Trust Fund
in our Water Rights Settlement Bill, named for the Gros Ventre and
Assiniboine Tribes in our respective Native languages, includes three
accounts and their uses, described below.
FBIC Tribal Irrigation and Other Water Resources Development
Account #1 ($119,524,134)
Restore the Southern Tributary Irrigation Project (STIP)
and Peoples Creek Irrigation Project, including
construction of the Upper Peoples Creek Dam and Reservoir,
on the southern portion of the Reservation.
Develop infrastructure for stock-watering across the
Reservation.
Provide on-farm development support.
Repair, restore, and develop wetlands across the
Reservation.
Conduct all environmental compliance activities.
Conduct planning, studies, and design work for all
activities.
The FBIC Tribal Irrigation and Other Water Resources Development
account will provide funding to restore the Southern Tributary
Irrigation Project, which was abandoned by the Bureau of Indian Affairs
(BIA) in the 1960-70s in disrepair, preventing tribal members from an
irrigation resource, and the Peoples Creek Irrigation Project. This
funding includes construction of the Upper Peoples Creek Dam and
Reservoir on the southern portion of the Reservation, which will
provide mitigation for the FBIC due to its agreement to subordinate its
priority Indian water rights on the Upper Peoples Creek to upstream
state irrigators on family farms. Funding would also be provided to
develop infrastructure for stock-watering across the Reservation,
provide on-farm development support, and restore and develop wetlands
across the Reservation.
FBIC Water Resources and Water Rights Administration, Operation, and
Maintenance
Account #2 ($66,630,752)
Establish, operate, and provide capital expenditures to
establish a Tribal water resources and water rights
department for administration, management, and regulation
of the Tribal water rights, including development of a
Tribal Water Code.
Create a Tribal trust fund to provide investment earnings
for the long-term support of the Tribal water resources and
water rights department to administer and manage the FBIC's
water rights.
Create a Tribal trust fund to provide investment earnings
to pay a portion of the annual operation and maintenance
assessment costs for Tribal irrigators to ensure long-term
repair and upkeep of the irrigation projects.
FBIC Water Resources and Water Rights Administration, Operations
and Maintenance account supports the traditional Indian water
settlement activities crucial to the establishment of a Tribal water
resources and water rights department. A Tribal trust fund will be
established that will allow the Tribal department to operate on the
annual interest earned on the Tribal trust fund and support the costs
of the regulation, administration, and enforcement of the FBIC water
rights with the development of a Tribal water code, as well as support
the cost of capital projects that will provide the necessary
infrastructure, equipment, and data to support the Tribal department
activities. Finally, this account provides funds necessary to establish
an Operation and Maintenance Fund for the Tribal agricultural
irrigation projects on the Reservation, using annual earned interest to
support a portion of the annual operation and maintenance costs of
Tribal irrigators--proven to be important for sustaining the
agricultural economy on the Reservation.
FBIC Clean and Safe Domestic Water and Sewer Systems, and Lake Elwell
Project
Account #3 ($442,513,627)
Construct and improve access to and the safety of a clean,
domestic water supply and wastewater removal systems on the
Reservation.
Develop two new wells at 300-ft deep, and one new well at
480-ft deep to provide water for the communities of the
Fort Belknap Agency, Hays, and Lodgepole.
Develop Homesite wells.
Construct new water treatment facilities in the Lodge Pole
and Hays communities.
Expand existing tribal domestic water delivery lines.
Construct a Project to deliver clean and reliable water
from Lake Elwell for the southern portion of the
Reservation.
Construct a Tribal wellness center to improve and ensure a
healthy workforce that will assume responsibilities related
to the Project activities funded under this bill.
The FBIC Clean and Safe Domestic Water Supply and Wastewater
Systems, and Lake Elwell Project account supports bringing and storing
clean drinking water for the Reservation. FBIC has both drinking water
supply issues and water quality concerns. The cost estimates are
intended to cover needed improvements to the water facilities at each
of the Reservation communities, as well as at individual homes within
the rural areas of the Reservation. Renovation of the existing Fort
Belknap Agency domestic water system will support the anticipated
future growth in domestic water demands on the Reservation.
The Lake Elwell Project will bring clean water to the southern
portion of the Reservation to ensure an adequate water supply to the
Tribal communities and members in this area of the Reservation, which
is in need of safe and reliable drinking water. The southern portion of
the Reservation continues to experience boil orders due to an
unreliable water system and low water levels. There is also the threat
to our groundwater from acid mine drainage due to terrible practices of
a cyanide heap leach gold mine located on the southern border of the
Reservation. Without the funding provided in this account, the FBIC
Tribal members will continue to experience water insecurity on the
Reservation.
Fort Belknap Indian Irrigation Project System Implementation Non-trust
Federal Account ($415,832,153)
In addition to the Aaniiih Nakoda Settlement Trust Fund and its
three accounts, our Bill includes funding for the rehabilitation,
modernization, and expansion of the BIA Fort Belknap Indian Irrigation
Project (FBIIP or Project) on the Milk River within the Reservation.
The Bill includes an expansion of the BIA's Milk River unit that will
consist of an additional 16,465 acres of new irrigable lands, for a
total of 26,890 acres under irrigation in the FBIIP Milk River Unit.
The Tribe's Indian water rights from the Milk River is secured under
the Compact for the new future irrigated lands. This will also include
construction of a new off-stream water storage reservoir, the Fort
Belknap Reservoir, on Three Mile Creek with a capacity of about 60,000
acre-feet, and construction of levees for flood protection of the Milk
River Unit lands.
The Project was originally authorized for construction in 1895, but
construction of the full project was never completed. There are 358
allottee users under the FBIIP and the Tribe's original Winters water
rights for 10,425 acres of historically irrigated lands will be used by
the Project. The Project was constructed over 100 years ago and is in
desperate need of rehabilitation and modernization. The construction of
the Project is also long past due for being completed. Our Bill
establishes the BIA's role as the Lead Agency for the FBIIP activities
and requires the BIA to coordinate with the Bureau of Reclamation
(BOR). Our Bill would also allow FBIC to enter into self-determination
contracts to conduct all or a portion of the activities identified for
the FBIIP with either BIA or BOR.
Our Water Rights Settlement Bill would require the Secretary of the
Interior (Secretary) to facilitate the formation of a project
management committee made up of representatives of the BIA, BOR, and
the FBIC. The committee would review and make recommendations relating
to cost factors, budgets, and implementing activities related to the
FBIIP. The committee is also responsible for improving management of
inherently governmental activities.
Mitigation for State Water Users
After our long-time cooperation and compromises with our non-Indian
neighbors, Congressional support of the agreed-upon mitigation
activities consistent with our negotiated FBIC-State-Federal Water
Compact will create harmony at a time when water wars between water
users are increasing. In fact, Montana has had a severe drought in
recent years. Mitigation activities will stabilize the water supply,
conserve water, and improve water use efficiency. Continued cooperation
among the interested parties through the mitigation activities will
also respect the sovereignty of the State and FBIC in our respective
jurisdictions.\12\
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\12\ 1990 Criteria.
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As described in the Water Compact, the Parties plan improvements in
the operating capabilities of the Milk River Project, where the Milk
River is the FBIC's largest source of our Indian water rights and forms
the northern boundary of our Reservation. These improvements will
mitigate the impact of the FBIC's future water development on the Milk
River Project users and tributary water users. The Water Compact also
provides that the FBIC will subordinate its senior water rights in the
Upper Peoples Creek to upstream non-Indian irrigation water users so
that they will be able to continue their historical irrigation water
use and family farms.
Milk River Project Mitigation ($300,000,000)
Improvements in the water supply of the Milk River for the Milk
River Project, which includes the St. Mary Diversion and Canal, will
mitigate the impact of the development and future use of our Tribal
Water Rights in the Milk River and provide protection of water use on
upstream tributaries. This is important because in our approved Water
Compact, the State reserved the right to withdraw as a party if
``Congress does not authorize and appropriate the federal share of
funding for the modification to the Milk River Project or other
alternatives necessary to mitigate the impact of development on the
Tribal Water Right.'' \13\
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\13\ Fort Belknap-Montana Compact, Mont. Code Ann. Sec. 85-20-1001,
Article VII.A.4.c.
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Extensive studies have been conducted to analyze the impact of
FBIC's water development and use on the Milk River. Projects were
identified that would provide the required mitigation for the Milk
River Project users and tributary water users. The Secretary is
required to restore, rehabilitate, and repair the St. Mary Canal and
associated facilities in cooperation with the State and the Blackfeet
Tribe. The Secretary is also required to rehabilitate and enlarge the
Dodson South Canal and associated facilities in cooperation with the
State and the FBIC.
Just a few weeks ago we were alerted again to the critical need for
this funding and water infrastructure repairs and upgrades. On June 17,
2024, the St. Mary Canal system suffered catastrophic failure of its
siphons that transport water to the Milk River across a broad valley.
Communities across the Montana Hi-Line, including FBIC, depend on the
Milk River Project and its St. Mary Diversion and Canal for drinking
water, municipal water, and the significant agricultural economy.
Our lives and agricultural economy are literally dependent on water
infrastructure that is more than 100 years old. Even with quick action,
the catastrophic failure of the St. Mary siphons at the beginning of
the growing season will threaten crops and our livestock for at least
the next two years. We could not withstand much more. We need quick
action to restore and improve this critical water infrastructure and
secure our communities for the next 100 years.
Upper Peoples Creek (included in Trust Fund, Account #1 funding)
The second mitigation-related agreement of the Parties to our Water
Compact is provided at Art. VI.C.:
The Parties agree, that, as a result of the protections
provided to the Upper Peoples Creek [non-Indian] water users in
the Compact and the variable natural water supply in the
Peoples Creek Basin, the water supply available for development
of the Tribal Water Right in the Peoples Creek may be limited.
The Parties agree that such impacts can and shall be mitigated
. . . through the construction of a dam and reservoir . . . and
to seek appropriations . . . for the benefit of the Tribes.
During the Water Compact negotiations, non-Indian, state irrigators
who have historically farmed on Upper Peoples Creek, upstream of the
western boundary of the Reservation, sought protection from the FBIC's
agreed-to Indian water rights quantification, development, and use in
the Upper Peoples Creek. Additionally, the Peoples Creek Basin has a
highly variable natural water supply, resulting in limitations in the
development and use of the Tribal Water Rights in Peoples Creek on the
Reservation.
Therefore, the FBIC agreed to allow the current irrigation of lands
in Upper Peoples Creek by the non-Indian irrigators, subordinating the
FBIC's senior reserved water rights. In exchange for the FBIC agreement
with these state water users, the State and Federal governments agreed
to mitigate the impact on the FBIC water use by constructing a dam and
reservoir for the benefit of the FBIC in the Upper Peoples Creek. The
dam and reservoir will significantly improve the reliability,
availability, and use of the FBIC water rights from Peoples Creek on
the Reservation.
State and Federal Land Transfers (38,462 total acres)
The Bill authorizes the transfer of approximately 16,117 acres of
federal land from the Bureau of Land Management, BIA, including former
allotments, and Bureau of Reclamation. The Bill also authorizes the
Secretary of Interior and Secretary of Agriculture, Forest Service, to
enter negotiations with the State to exchange approximately 22,345
acres of State trust lands for Federal lands to be transferred and held
in trust for the FBIC. The total acreage to be transferred to the Tribe
is approximately 38,462 acres.
No private lands are included in the Federal land transfer and
customary access to private lands will be retained. The federal lands
to be transferred will be subject to valid existing rights and
requirements and be held in trust for the Tribe. The land transfers
provide for consolidation of Tribal lands both on and off the
Reservation (including the submarginal land area adjacent to the
western boundary of the current Reservation) for improved Tribal
administration, better management of forested lands by our experienced
land management department and fire response team, and the restoration
and protection of the FBIC's cultural resources.
A significant distinction between the Bill version we initially
introduced in the Senate in June 2023, S. 1987, and the version that
has now passed the Senate twice is that a provision in the Federal
lands transfer section was removed. The removed provision included the
transfer of future allotments foreclosed by the United States
Department of Agriculture (USDA). This provision would have allowed
future USDA foreclosed land to be transferred to the BIA and put into
trust for the Fort Belknap Indian Community. H.R. 7240 and H.R. 8791
both reflect this revision.
Conclusion
Congress has an opportunity to address more than 100 years of
neglect and failure of the United States to fulfill its commitments
made in treaties and agreements with the Gros Ventre and Assiniboine
Tribes by passing our Indian Water Settlement Bill. Water is life.
Indian water rights are one ``of the four critical elements necessary
for tribal sovereignty.'' \14\ Our Water Rights Settlement Bill will
provide recognition and enforceability of our reserved water rights,
self-sufficiency, and economic success--and supports the permanent,
livable homeland for our people that was promised to us by the United
States. Our Water Rights Settlement Bill will ratify our negotiated
Indian water rights and provide much-needed economic benefits for the
FBIC and surrounding communities.
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\14\ City of Albuquerque v. Browner, 97 F. 3d 415, 418 (10th Cir.
1996).
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Approval of our Water Rights Settlement is an historic event--we
are the Winters Tribes with United States Supreme Court adjudicated and
decreed Indian reserved water rights since 1908, and we are the last
Tribes in Montana to achieve our water settlement with the United
States. We respectfully request that Congress work to swiftly pass our
Water Rights Settlement Bill. It is long overdue.
______
Mr. Bentz. Thank you. I now recognize Chairman White Clay
for 5 minutes.
STATEMENT OF THE HON. FRANK WHITE CLAY, CHAIRMAN, CROW TRIBE OF
INDIANS, CROW AGENCY, MONTANA
Mr. White Clay. Good morning, Chairman Bentz, Ranking
Member Huffman, Congresswoman Leger Fernandez, and Congressman
Rosendale. I am Frank White Clay, Chairman of the Crow Nation
in southeastern Montana, home to approximately 14,350 enrolled
members on 2.4 million acres of our reservation, which is huge,
significant, bigger than most states.
The Crow Water Rights Settlement Act of 2010 ratified the
Crow Tribe State of Montana Water Compact and provided for the
rehabilitation and improvement of the Crow Irrigation Project,
a project owned and operated by the Bureau of Indian Affairs
for the construction of municipal, rural, and industrial water
systems for the delivery of clean drinking water for tribal
rights for the Tribe and allottees, ratification of the storage
of water in Bighorn Lake of 300,000 acre-feet per year, in
addition to 500,000 acre-feet in the Big Horn and all
groundwater on the Crow Reservation, the exclusive right of the
Tribe to develop and market power generation on Yellowtail Dam
Afterbay.
I am here today to support the amendments to the 2010 Act
to revise it from a project-based settlement to a trust fund-
based settlement that will allow flexibility on the delivery of
clean water. Importantly, the amendments Act will extend the
deadline on the exclusive right to develop the hydropower
generation project, which is set to expire in 2025.
The Tribe completed engineering for the water intake
facility on the Bighorn River in 2022, and advertised for bids
for construction and received no bidders. This led the Tribe to
reconsider the viability of the reservation-wide MR&I pipeline
and identify the following concerns.
The pipeline construction time frame was approximately 20
years at a cost of over $400 million, with an expectation that
estimated construction costs will rise. Pipeline construction
would be very challenging with the size of our reservation and
varying geographic features. The pipeline construction time
frame would result in a lengthy delay of water delivery for my
communities, and some communities wait many years for clean
drinking water.
The water settlement included a limited amount of $47
million for operations, maintenance, and replacement costs,
which was projected to cover approximately 8 years of costs
following project completion, and this is only if there are no
unplanned breaks or interruptions.
The Water Settlement Act did not include mandatory hookup
for households along the pipeline. And the tribal household, if
was required to hook up, would pay approximately $120 a month
in water fees: a burden, clearly, to the families with access
to limited means.
The Environmental Protection Agency expressed concerns to
the Bureau of Reclamation in a letter dated October 31, 2022.
The location of the intake unit, resulting in water age
concerns for most customers and the proposed use of complex
chemicals for treatment that would necessitate operators with
advanced certification requirements. Despite years of
attempting to secure water rights for the pipeline, from
Yellowtail Afterbay intake to the first reservation community
across approximately 50 fee and trust tracts and spending $4
million, no right-of-ways were perfected. Based on these
concerns, the Tribe is proposing to move the funds into a trust
account for Federal management withdrawal upon approval to
develop clean water through regional water plants in the
community and rural well improvement.
A BIA-funded water study proves sufficient water in two
deep aquifers to support the regional plants and rural
development. The alternatives can deliver water much quicker,
are cost effective and manageable. The Tribe started the Crow
Irrigation Improvement projects and has completed engineering
for the entire system. The Tribe has proposed moving funds into
an interest-bearing account, but will not change the current
course of irrigation improvement projects in coordination with
BOR.
On behalf of the Crow tribal membership, I am hopeful that
the Crow Water Settlements Act will be adopted this
congressional session. At present, without amendments, the
Tribe is unable to proceed with clean water delivery projects
as specifically mandated. Pipeline construction is not
feasible.
Clean water has become critical for the Crow Reservation.
As many studies indicate, with the high cancer rates of the
Crow people, it is likely attributable to contaminated water.
The amendments the Tribe seeks are at no new cost to the United
States, and do not impact the other provisions of the Crow
Tribe, State of Montana Water Compact, and protects all
existing water users.
So, with that I would like to ask for your support in
passing this bill. Thank you.
[The prepared statement of Mr. White Clay follows:]
Prepared Statement of Frank Whiteclay, Chairman, Crow Nation
on H.R. 8953
Good Morning, Honorable Members of the House Committee on Natural
Resources. I am Frank Whiteclay, Chairman of the Crow Nation of
Montana, and I am honored to present this testimony in support of the
Crow Water Rights Settlement Amendments Act, H.R. 8953. I would like to
thank Congressman Zinke for his sponsorship of this important
legislation for the Crow Nation.
The Crow Tribe proposed these amendments to the Crow Water Rights
Settlement Act of 2010 to amend the Act from a project specific Act to
a fund-based settlement Act that is consistent with more recent Indian
water rights settlements and provides flexibility for clean water
delivery systems.
BACKGROUND
The Crow Reservation, formally established pursuant to the Fort
Laramie Treaty of 1868, is located in southeast Montana, and currently
encompasses 2.3 million acres with three mountain ranges, significant
range lands, dry farm and irrigated lands with numerous water sources
originating on and off the reservation. Approximately 7500 Crow Tribal
members reside on the Reservation and approximately 1500 non-Indian
residents possess state-adjudicated water rights throughout the
reservation with the majority along the Big Horn River.
The Bureau of Indian Affairs constructed the Crow Irrigation System
in the early 1900's to enhance agricultural efforts on the Crow
Reservation through irrigation of farmlands along the Big Horn River,
Little Bighorn River, Pryor Creek and Lodge Grass Creek. A significant
portion of lands along the irrigation systems are in non-Indian fee
ownership.
The Crow Tribe negotiated a Water Compact with the State of Montana
Reserved Water Rights Compact Commission that was ratified by the
Montana Legislature in a special session in June 1999. The Compact:
provides water from surface flow, groundwater and storage
for the Crow Tribe for existing and future Tribal water
needs.
Provides protection for all state and Tribal current water
uses in the affected water basins from the Tribe's future
exercise of its water rights; also protects the local
conservation districts' right to future water use.
Creates an administrative process for resolution of any
future disputes between Tribal and non-Tribal water users.
CROW TRIBE WATER RIGHTS SETTLEMENT ACT OF 2010
The Crow Tribe Water Rights Settlement Act of 2010 ratifies,
authorizes, and confirms the water rights 1999 Compact between the Crow
Tribe and the state of Montana and provides for: 1) the Tribe to
rehabilitate and improve the Crow Irrigation Project; and 2) the Tribe
and Reclamation to construct the municipal, rural, and industrial water
system; 3) provides tribal water rights for the tribe and allottees; 4)
provides for leasing and selling of water with federal approval; 5)
identifies 300,000 acre-feet per year of water stored in Bighorn Lake,
Yellowtail Unit, Lower Bighorn Division, Pick Sloan Missouri Basin
Program, for the Tribe in addition to the allocation of 500,000 acre-
feet per year in the Big Horn and all groundwater on the Crow
Reservation; and 6) provides the exclusive right of the Tribe to
develop and market power generation on the Yellowtail Afterbay Dam.
The Crow Tribe proposed Amendments to the Crow Tribe Water Rights
Settlement Act of 2010 to create a fund for water delivery purposes and
related uses, to revise the management of the funds allocated for the
Crow Irrigation Improvement Projects, and to extend the deadline for
right to develop and market power generation at the Yellowtail Afterbay
Dam.
MUNICIPAL, RURAL, AND INDUSTRIAL WATER SYSTEM
The Crow Tribe Water Rights Settlement Act of 2010 (Act) ratified
and confirmed the 1999 Crow Tribe/State of Montana Water Rights Compact
and directed the Secretary, through the Bureau of Reclamation, to
design and construct a Municipal, Rural, and Industrial (MRI) water
system through an agreement with the Tribe. Section 403 of the Act
specifically described the MRI system as ``raw water intake, water
treatment plant, pipelines, storage tanks, pumping stations, pressure
reducing valves, electrical transmission facility and other items.''
The Tribe has spent the last (ten)10 years designing the pipeline
project as specifically described in the Act.
In 2022, 10 years after the enforcement date of the Water
Settlement, the Tribe completed engineering work for the MRI system
water intake unit at the Yellowtail afterbay and the project was
advertised for bids. However, no bids were received due to the
complexity of project and the requirement for specialized divers for
underwater construction. Following this setback, the Tribe reviewed the
overall MRI project plan and identified the following concerns with the
MRI project as specifically described in the Water Settlement Act of
2010.
The pipeline construction timeframe was approximately 20
years at a cost of $400 million plus with an expectation
that estimated construction costs will rise, likely
resulting in a shortfall to complete construction. Pipeline
construction would be daunting with the size of the
reservation and the varying geographic features.
The pipeline construction timeframe would result in a
lengthy delay of water delivery for reservation communities
and some communities would wait many years for clear
drinking water.
The water settlement included a finite amount of $47
million for Operation, Maintenance and Replacement costs
which was projected to cover approximately eight years of
costs, without unforeseen breaks or interruptions,
following project completion.
The Water Settlement Act did not include mandatory hook-up
for households along the pipeline leaving the number of
actual customers unknown. However, if every Tribal
household was hooked up to the pipeline, monthly consumer
costs to cover operational costs would be approximately
$120 per month in today's dollars which will be a burden to
impoverished reservation households.
Private landowners were unwilling to grant temporary
permits to cross lands for water sampling and testing for
placement of the water intake unit closer to reservation
communities which resulted in moving the intake to Tribal
lands at the Yellowtail afterbay, a location much further
from the reservation's larger communities.
The Environmental Protection Agency expressed concerns to
the Bureau of Reclamation, in a letter dated October 31,
2022, with the location of the intake unit resulting in a
water age concern for most customers and the proposed use
of complex chemicals for treatment that would necessitate
operators with advanced certification requirements.
Despite years of attempting to secure rights of way for
the pipeline from the Yellowtail afterbay intake to the
first reservation community, across approximately 50 fee
and trust tracts, and expending $4 million, no rights of
way were perfected.
Upon re-assessment of the feasibility of the pipeline MRI system,
the Tribe reviewed an alternative water delivery system that would
utilize regional water plants in each reservation community that would
be more cost-effective and deliver clean water within 2 to 4 years.
Additionally, the Tribe proposed improvement of existing water wells
for rural households as the majority of wells are shallow with
compromised water quality.
The Bureau of Indian Affairs provided funds for a water study to
support the proposed regional water plants and rural well concept. The
water study indicated a vast supply of available water in two major
aquifers below the Crow Reservation, the Judith River and Parkman
formations which are currently largely untapped. Thus, use of water in
the existing aquifers would not interfere with or compromise existing
water rights in the Big Horn river or Little Big Horn river.
The water study further revealed that over 50% of Crow Reservations
households have contaminated water due to inefficient water treatment
and shallow wells. This fact created greater incentive to pursue a
water delivery system that could be operational in a short number of
years to best serve the population.
The amendments would move the MRI funds from a private bank into a
trust fund for clean water delivery and related projects that would be
managed pursuant to the 1994 Trust Reform Act that requires submission
of an annual expenditure plan and a budget to DOI for review and
approval before release for funds to the Tribe. The Tribe agrees with
this management process and further agrees with the Amendments Act
mandate to complete all clean drinking water delivery projects prior to
any other allowable uses of the fund. Further, the Tribe agrees with
the Amendment Act's limitation of transfers of funds from the clean
water delivery trust fund to the Crow Irrigation Improvement fund.
CROW IRRIGATION IMPROVEMENT
The Crow Water Settlement Act of 2010 directs the Secretary,
through the Bureau of Reclamation, to improve the Crow Irrigation
Project (CIP) in accordance with an agreement with the Crow Tribe.
Implementation of projects was preceded by in-depth studies to
modernize the dilapidated 100-year-old system and allocate funds for
the various components of the system. The proposed amendments do not
revise the current project implementation plans and co-management of
the irrigation improvement projects by the Tribe and the Bureau of
Reclamation. However, the Amendment Act would move the CIP funds from a
private bank to federal treasury in a non-trust interest bearing
account that would maintain the joint Tribe and BOR management. This
move reduces the costs of managing funds but still complies with the
original Settlement Act mandate for indexing of funds. Further, the
Amendment Act will ensure that all funds
ENERGY DEVELOPMENT PROJECT
The Crow Water Settlement Act of 2010 provided an exclusive right
for the Crow Tribe to develop hydro power in the Yellowtail Afterbay
that would expire in 2025 and provided a lump sum to cover a portion of
the costs. The Crow Tribe delayed pursuit of the project due to the
initial engineering design plan prospectively interfering with
Yellowtail Dam operations and, later, the on-set of the COVID pandemic.
The Tribe has now engaged a hydro plant developer, revised the site and
engineering concerns, and intends to start construction prior to the
December 2025 deadline. The Tribe has proposed a five-year extension of
the deadline to complete the project to accommodate any unexpected or
unforeseen complications that may arise.
CONCLUSION
On behalf of the Crow Tribal membership, I am hopeful that the Crow
Water Settlement Amendments Act will be adopted this Congressional
session. At present, without the Amendments, the Tribe is unable to
proceed with clean water delivery projects as the specifically mandated
pipeline construction is not feasible. Clean water has become critical
for the Crow Reservation as many studies indicate that the high cancer
rates of the Crow people is likely attributable to contaminated water.
The Amendments the Tribe seeks are at no new costs to the United
States and do not impact the other provisions of the Crow Tribe/State
of Montana Water Compact that protects all existing water users on Crow
Reservation. Further, the Amendments do not revise the on-going Crow
Irrigation Project improvements or the specific allocation of funds for
those projects. Finally, the return of funds to federal oversight will
avoid costs for the Crow Tribe and ensure protection of water
settlement funds for future generations of the Crow Tribe.
Thank you for your consideration of this important legislation and
please contact me directly with any questions.
______
Mr. Bentz. Thank you. I now recognize Chairman Nieto for 5
minutes.
STATEMENT OF THE HON. LESTER SHINE NIETO, VICE CHAIRMAN, TULE
RIVER INDIAN TRIBE OF CALIFORNIA, PORTERVILLE, CALIFORNIA
Mr. Nieto. Greetings, Chairman Bentz and members of the
Subcommittee. My name is Shine Nieto, and it is an honor to
appear before you today on behalf of the Tule River Indian
Tribe, where I serve as the Vice Chairman.
I come before you today to share Tule River's greetings and
strong support for H.R. 8920, which will approve the settlement
of our water rights claims. This bill enjoys support from our
broader coalition and community members called the South Fork
Tule River Coalition.
This bill is needed for the survival of my people. It will
also be a true success for all the communities involved, not
only just the Tule River. It is really everyone's settlement.
It will ensure water security in an area that faces
catastrophic wildfire, as well as a record-breaking drought and
flooding.
I would like to thank Representative Fong, Representative
LaMalfa, and Sir Bryan Newland over here for all their support
and assistance in our efforts.
I would also like to thank Chairman Westerman, Chairman
Bentz, and the Staff Director, Annick Miller, for all the
effective leadership and hard work.
The Tule River Indian Reservation covers about 85 square
miles of rugged foothill terrain in the Sierra Nevada Mountains
of the Central Valley. The elevations range from 900 feet to
7,500 feet. The South Fork Tule River runs through the middle
of the reservation and then flows onto the main Tule River,
about 10 miles west of us. There are no significant uses of
water upstream.
There is a lack of sufficient water supply for the
reservation. We have worked for decades to address our water
rights to make our reservation a permanent homeland. The
current water supply is unpredictable and unsafe. We are forced
to drink brown water at times or go without. The water system
relies on a series of wells, springs, and water drawn directly
from the South Fork, which is treated to meet only potable
water standards. Our water delivery infrastructure is held
together with duct tape and wire. Actually, water demands far
exceeds water availability.
The South Fork provides the Tribe with about 80 percent of
its water, but 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 because the river runs low or even goes dry
several months a year.
Fifty-three years of concerted work has led to this moment.
We seek to quantify the agreement we have with our neighbors:
the South Fork, the South Tule River, the South-Tule
Independent Ditch Company, and the Tule River Association, who
represent all senior water right holders. Their members are
major players in the agricultural community and the livelihoods
critical to the local community of America's food supply.
We also satisfied each of the requirements in the 1990
policy guidance. If we were to file a lawsuit, it would tie up
existing water use for decades, settlement outside of court,
including the Tribe, the downstream neighbors in the Central
Valley, and the taxpayers at large. Any litigation will be
drawn out, expensive, and risky. Taxpayers have already seen
negative impacts from not finalizing the settlement. In recent
years, they had to pay for increased wildfire suppression
efforts, bottled water deliveries, and repairing washed-out
roads.
We seek to float all boats. The bill will allow my people
to finally have function in homeland with clean water that is
safe to drink. It will allow the United States to meet its
legal obligations, and it will impound water at high elevation,
which is exactly the kind of drought solution called for by the
Central Valley agricultural industry. It will also provide a
strategic dipping pool in the event of a wildfire.
The Tule River Tribe is in a water crisis. Broken promises
and previous failures of the United States led to where we are
today. Let us delay no longer. Let us act now to address
emergency conditions on our reservation, and for our Federal
partners to join in to provide resources necessary to ensure a
sustainable future for the Tule River Tribe. In doing so, we
benefit surrounding communities, secure water availability, and
ensure clarity of title.
We respectfully request that the Subcommittee recommend
passage of H.R. 8920. I thank Chairman Bentz and Members for
the opportunity to fully express Tule River's efforts to
resolve our water rights claims. Please refer to my written
testimony which includes details regarding the dam construction
project, how we have met Federal Government requirements for
this settlement, and for further explanation of our water
shortage crisis.
[The prepared statement of Mr. Nieto follows:]
Prepared Statement of Lester Shine Nieto, Vice Chairman, Tule River
Indian Tribe of California
on H.R. 8920
I. Introduction
Greetings Chairman Bentz and members of the Subcommittee on Water,
Wildlife and Fisheries. My name is Lester Shine Nieto, 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, where I
serve as the Vice Chairman of the Tule River Tribal Council. I come
before you today to share Tule River's greetings and strong support for
legislation currently pending before the House, H.R. 8920, which will
approve the settlement of the water right claims of the Tule River
Tribe. H.R. 8920 will approve a settlement agreement (``Settlement'')
reached with the broader coalition of community members in the San
Joaquin Valley called the South Fork Tule River Alliance. While it is
imperative for the survival of my people that our Settlement becomes
law, passage of this bill will be a true success for all the
communities involved, not just Tule River. It is really everyone's
settlement. And it will ensure water security across a wide range of
interests now and into the future in an area that in the last three
years faced catastrophic wildfires as well as record breaking drought
and flooding.
I would like to thank Representative Fong, Representative LaMalfa
and their staff for their solid support for our efforts. I would also
like to thank Chairman Westerman for his commitment to settle Indian
water rights. When the House Committee on Natural Resources considered
the Save Our Sequoias Act, I was honored to testify in support of that
proactive bill and had the great pleasure of working with Chairman
Westerman. The effort demonstrated Tule River's commitment to
bipartisan solutions that meet all objectives fairly. Now the House
Committee on Natural Resources can further gain traction and
recognition for its support of Indian Country by passing the Tule River
Water Settlement out of committee and recommend an expedited hearing on
the House floor. Finally, I would like to thank Chairman Bentz, and the
Staff Director for this subcommittee, Annick Miller. Without their
effective leadership, we would not be here today.
II. Tule River Indian Reservation
The Tule River Indian Reservation is located in south central
California and covers approximately 85 square miles (55,395-acres) of
rugged foothill terrain in the Sierra Nevada Mountains in the Tulare
Basin of the Central Valley. The topography of the Reservation is
generally steep, with elevations ranging from about 900 to 7,500 feet
above sea level. Many of the roads on the reservation reach grades of
7-18%, including those used to access tribal member homes. The South
Fork of the Tule River runs through the Reservation, which then flows
into the Tule River at Success Lake, about ten miles west of the
Reservation. There are no significant uses of water upstream of the
Reservation.
The Tule River Tribe was removed to its current Reservation near
Porterville in 1873 by a Presidential Executive Order, which replaced a
previous reservation that provided us more suitable lands for
habitation closer to the valley floor. We currently house 1,990 members
on the Reservation and have a waiting list of other tribal members who
would like to live on the Reservation. Without water, though, we are
unable to accommodate them. It is estimated that only 56% of our
population lives on the Reservation, which is confirmed by the length
of our waiting list. A Bureau of Reclamation Technical Evaluation
Report for the Settlement indicated that by the year 2112 the Tribe's
total membership will reach about 6,860 people. (See Attachment 1, p.
3-2).
Below is a map of the Reservation. The Reservation's eastern
boundary abuts the Forest Service's Giant Sequoia National Monument.
Just west of the Reservation 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.
[GRAPHIC] [TIFF OMITTED] T6360.011
III. The Need for Water on the Reservation--Fire Suppression and a
Homeland
There is a lack of sufficient water supply for the Reservation. We
have worked for decades to proactively address our federally reserved
Indian water rights so that we can develop the necessary water
resources to make our Reservation a permanent homeland. The current
water supply is intermittent and suffers from water quality issues. The
Reservation water system relies on a series of wells, springs, and
water drawn directly from the South Fork Tule River, which is treated
to meet potable water standards. Actual water demand far exceeds
documented water use, which is constrained by both water availability
and the water distribution system itself. (See Attachment 1, 2-1 at
Sec. 2.1.1).
The South Fork provides the Tribe with about 80% of its water. It
flows through the Reservation and it is this water source that will be
subject to the Tule River Tribe's federal reserved Indian water rights.
Since the establishment of the Reservation, 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. (See Attachment
2).
For the past 15-20 years, persistent drought caused water
reductions as well as complete shutoffs. Homes typically run out of
water during peak summer months and members must travel to trucked-in
water stations to bathe and obtain bottled water for their home use.
When there are outages people cannot cook, or bathe, and members must
rely on bottled water for basic needs. They may miss work and/or
school. Residents are asked to limit water use, sometimes 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. During water-short times we
regularly experience interruptions in critical services like education
programs, including the Towanits Elementary School, emergency services,
elder care, justice center and government functions. The shortages
impact not only our people's physical well-being, it also is
detrimental to our economy.
[GRAPHIC] [TIFF OMITTED] T6360.012
[GRAPHIC] [TIFF OMITTED] T6360.013
In relation to recent severe drought, we have had major fires
in the last decade. (See Attachment 3). 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, meaning we are back into the
cycle described above. In the event of a wildfire, water to fight fires
must therefore be imported from off the Reservation. During the Windy
Fire, near vertical, rocky terrain and a lack of high elevation dipping
pools for fire protection on the Reservation complicated suppression
efforts. The fire killed many old growth giant sequoia trees--thousands
of years in the making, and sacred to us culturally--incinerated tens
of millions of board feet of timber and contributed to flooding and
erosion throughout the spring of 2023. Future ignitions in remote areas
continue to threaten the Reservation and neighboring communities.
Catastrophic wildfire spreads quickly and can easily burn entire towns
and forest stands within a 24-hour period.
[GRAPHIC] [TIFF OMITTED] T6360.014
Images 4 & 5: Wildfire smoke and flames on Tule River
Reservation.
[GRAPHIC] [TIFF OMITTED] T6360.015
[GRAPHIC] [TIFF OMITTED] T6360.016
The Tribe's water treatment plant currently has the capacity to
provide 501,700 gallons per day (562 acre-feet per year) at maximum
production. We have to run the treatment plant at maximum capacity and
use groundwater sources to make up shortfalls. Many years, like last
year, we have not had adequate water supplies in the late summer and
early fall to meet the current minimum 100,000 gallons per day of water
demand. In addition, recent flooding impacted our ability to operate
the water treatment plant efficiently and requires the use of a
patchwork system of generators. When the generators fail the daily
functioning of government services on the Reservation are again shut
down.
Water cisterns containing emergency stored water are difficult to
access, and water delivery pipelines installed by the Indian Health
Service (``IHS'') decades ago are of inadequate size to deliver water
reliably. In seeking information about the installation of these pipes,
we were told by IHS that an ``as-built'' plan for the system is not
available, making updating it even more time-consuming and difficult.
Meanwhile, the elevation difference between our water sources and end-
users causes naturally occurring sulfur in our groundwater supplies to
rise above the water as it gets pushed through the pipes, resulting in
noxious sulfur odors polluting homes prior to the much-needed water
arriving. The sulfur odors have made homes unlivable in some instances.
Other homes are currently experiencing such water deficits that tribal
members are unable to flush toilets, making their homes uninhabitable.
Many members must live in recreational vehicles due to finances, but
HUD informed us it cannot make water deliveries to RVs. ``Many of the
residents on the Reservation continue to have a relatively low standard
of living in substantial part due to the absence of an adequate and
reliable potable water supply and delivery system. Inadequate water
supplies have resulted in reduced opportunities for economic
development on the Reservation and prevent off-Reservation Tribal
members from relocating to the Reservation.'' \1\
---------------------------------------------------------------------------
\1\ Tule River Tibe, Water Settlement Technical Report (2013)
(https://tulerivertribe-nsn.gov/wp-content/uploads/2022/09/
20130600technical_report.pdf) (last accessed 10/12/2023).
---------------------------------------------------------------------------
Last year, on August 17, 2023, our Tribe declared a state of
emergency. (See Attachment 4). Severe water shortages began when a
lightning strike shorted out the power for the Reservation's water
treatment plant, which was already struggling to treat our main water
source. The South Fork of the Tule River had become excessively dirty
from runoff associated with the spring's extreme flooding, making the
treatment plant work overtime already. In addition, the pump for the
Reservation's backup well was shorted by a power surge. The resulting
crisis led our people to conserve water and stop all unnecessary water
use--including limited water for toileting, showering, and laundry.
Meeting basic water needs is foundational to any society, and it is
directly linked to our ability to exist as a sovereign nation. Last
summer we learned more than ever that water is sovereignty. Our
Settlement reconciles over 100 years of the effects of forced removals
of the Tule River people, even at gunpoint, and the unratified 1851
Treaty of Paint Creek relied upon by our people in good faith.\2\ The
history of Tule River, and our forced removal onto the Reservation,
sadly tracks the troubled history of the U.S. and its relations with
native people. But the history in California is one of the darker
pages.\3\ The Tule River Water Settlement and accompanying legislation
offers a unique opportunity to correct these past wrongs.
---------------------------------------------------------------------------
\2\ 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%225c659d6f0af12b193f2f1f287c6e356b%22&operator=OR&url=
%2Fopac% 2Fsearch.do).
\3\ 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).
---------------------------------------------------------------------------
IV. Tule River's Settlement Benefits All Surrounding Communities and
Satisfies All Requirements
Indian water settlements are traditionally negotiated through the
Criteria and Procedures for the Participation of the Federal Government
in Negotiations for the Settlement of Indian Water Rights Claims
(``Criteria and Procedures''). We have worked hard for decades to
codify the agreement we have with our neighbors--the South Tule
Independent Ditch Company (``STIDC'') and the Tule River Association
(``TRA''). TRAs members represent all pre-1914 water rights holders of
the Tule River at and below the Richard L. Schafer Dam and Reservoir
(formerly Success Dam). TRA includes the Pioneer Water Company,
Vandalia Irrigation District, Porterville Irrigation District, and
Lower Tule River Irrigation District. Settling with these parties
implicates many interests beyond the individual entities, as all are
major players in the agricultural economy and their livelihood is
critical to the local community and beyond.
We have also satisfied each of the requirements of the Criteria and
Procedures. If we were to file a lawsuit, that could tie up existing
water rights for decades. As a result, we knew that a settlement
outside of court is in everyone's best interests. The favorability of
settlement over decades of litigation is further evidenced by the
support of our neighbors--the downstream state-based water right
holders. Ultimately, approving the Settlement rather than going to
court is in the best interests of the Tribe, our neighbors in the
central valley in California, and taxpayers at large. Any litigation
will be drawn out and expensive, with outcomes unknown and therefore
risky. In addition, taxpayers have already seen negative impacts from
not finalizing the Settlement. In recent years, they've had to
contribute toward increased wildfire suppression efforts, help pay for
bottled water deliveries, and assist in replacing outdated water
delivery infrastructure and repairing washed out roads. If these
impacts continue, taxpayers and the communities near the Reservation
will be faced with the fallout from displacement caused by lack of
reliable water access on the Reservation.
We seek commonsense, bipartisan outcomes, and passing our
Settlement into law offers a unique opportunity for all to achieve
success. It will allow the Tribe to finally have a functioning homeland
and will ensure access to clean water for our long-struggling people.
It will allow the U.S. to meet its obligations agreed to in contract,
Executive Orders, and unsigned treaties. It will ensure water certainty
for all the downstream state-based water users. It will impound water
at high elevation, which is exactly the kind of drought solution called
for by the Central Valley agricultural industry. It will also provide
an advantageous dipping pool in the event of a wildfire. Furthermore,
the Settlement will provide water certainty in times of drought and
will ensure greater safety in times of flooding, both on and off the
Reservation.\4\
---------------------------------------------------------------------------
\4\ KWPR, Kerry Klein, ``Evacuations ordered as Porterville lake
fills beyond capacity, water is released'' (March 15, 2023)
(Evacuations ordered as Porterville lake fills beyond capacity, water
is released (kvpr.org)) (last accessed Oct. 10, 2023).
---------------------------------------------------------------------------
Our Settlement was first reached in 2007 without the need for
costly litigation and has since waited for full federal support and
passage by Congress into law. We are here today because we have worked
through all the concerns of our assigned federal negotiating team. We
completed twenty-five years of study on the feasibility and various
alternatives to secure our water rights, and we have addressed every
issue that arose during our many years of negotiations. The Settlement
also has broad local support. It memorializes our agreement with the
STIDC and TRA, organizations that support the dairy, citrus, and other
agricultural industries of the Central Valley of California.
Had our Settlement been implemented by Congress after it was
reached in 2007, the last three years of drought, catastrophic
wildfire, and extreme flooding would have been mitigated and the dire
situation we find ourselves in today largely avoided. Instead, that
potential source of life-sustaining water simply vanished downstream in
the record setting flooding of the spring of 2023, eroding the only
access road to the Reservation at great expense to ourselves and Tulare
County.
[GRAPHIC] [TIFF OMITTED] T6360.017
V. 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 U.S. In the first two years of the gold rush, it is estimated
that 100,000 native people were killed.\5\
---------------------------------------------------------------------------
\5\ Id.
---------------------------------------------------------------------------
To legally obtain the lands that the Tribal Nations held, the U.S.
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.\6\ Our ancestors were never informed the treaties we negotiated
with the federal government were not ratified.
---------------------------------------------------------------------------
\6\ 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 Attachment 5,
Timeline of the Tule River Tribe Water Rights.)
[GRAPHIC] [TIFF OMITTED] T6360.018
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, DC. 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.\7\ 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.
---------------------------------------------------------------------------
\7\ 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.softlink
liberty.net:443/liberty/
OpacLogin?mode=BASIC&openDetail=true&corporation=NARF&action=
search&queryTerm=uuid%3D%225c659d6f0af12b193f2f1f287c6e356b%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 U.S. v. Hutto, 256 U.S. 524, 525
(1921), and prohibited the sale of Indian lands except by treaty. 25
U.S.C. Sec. 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.\8\
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\8\ 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 15 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.
[GRAPHIC] [TIFF OMITTED] T6360.019
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.\9\
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\9\ 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, for the
federal government to 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 lived in. Mostly killing men and
young boys.'' \10\
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\10\ 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).
---------------------------------------------------------------------------
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.\11\
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\11\ 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.\12\ 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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\12\ Id.
[GRAPHIC] [TIFF OMITTED] T6360.020
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 U.S. 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 (Attachment 6). 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 U.S. promised to develop Tule
River's reservation with the utilization of a permanent water right.
The U.S., however, has not fulfilled its obligation to fully develop
the reservation or the water resources necessary to make the
reservation a permanent homeland as was promised. We continue to live
under the terms of the 1922 Agreement today. We have honored the
obligations made by the U.S., on our behalf and without our consent,
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 U.S. 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 U.S. to now enact
the Settlement into law. Passing such legislation will finally provide
the Tule River Tribe a viable homeland and will thereby reduce
financial impacts to taxpayers and alleviate any potential associated
litigation risk.
VI. Overview of Settlement Terms and Proposed Legislation
We spent over 20 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. (Attachment 7).
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. (Attachment 1 at p. 5-11). In addition to
the reservoir and raw water transmission mainline, the project will
also improve and update existing delivery and water treatment systems.
(Attachment 1 at p. 5-15).
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 14 years negotiating with the downstream water users, STIDC
and the Tule River Association. 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 our proposed legislation,
currently pending before the Senate as S. 306. The 2007 Agreement
offers flexible and realistic terms and provides built-in mechanisms to
ensure fairness. The Settlement was achieved without costly litigation
that could otherwise lock up the invaluable water in the Tule River
basin for decades.
The 2007 Settlement and accompanying 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, 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 decision making, 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.\13\ 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. As a
comparison, improvements to the downstream Schaffer Dam at Lake Success
Reservoir, which entails widening the dam's spillway and improving flow
control, is estimated to total $135.5 million alone.\14\
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\13\ Bureau of Reclamation, ``Tule River Indian Water Rights
Settlement--Technical Evaluation Report'' 53-61 (September 2016).
\14\ Gutierrez, Danielle, ``Second Phase of Schafer Dam has Begun''
The Sun Gazette (August 22, 2022) (https://thesungazette.com/article/
news/2022/08/27/second-phase-of-schafer-dam-project-has-begun/).
---------------------------------------------------------------------------
Given the risk, as well as the emergency water crisis facing the
Reservation, 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 begin the
preparation process for building 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.'' \15\ 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. It will also allow us to
begin the work of securing a water source for our people immediately.
With the passage of the Settlement into law, we will have achieved a
durable solution to our water crisis.
---------------------------------------------------------------------------
\15\ 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.
---------------------------------------------------------------------------
The proposed legislation to implement the Settlement also includes
a transfer of land into trust of 825 acres from the Bureau of Land
Management, 1,837 acres of tribally owned fee land, and 9,000 acres
from the Giant Sequoia National Monument for Tule River, thereby also
reducing impacts to taxpayers. 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% of our 55,356-acre Reservation. Runoff from the
burn area created a siltation overload in our water treatment system
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 also negotiated with
the USDA and Sequoia National Forest to establish better and more
formal co-stewardship provisions that will complement the land
transfer. This effort is the culmination of a concerted effort to build
high quality relationships by all interested parties. In fact, one of
our former Tule River Tribal Councilmembers is now the Tribal Relations
Specialist for the Sequoia National Forest. Being a team player with
our neighboring land managers will also mean the reservoir can 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 1873 Executive Order of
President Hayes that unlawfully reduced our Reservation. It will more
accurately account for the land lost to the Tribe because of the past
fraudulent land warrants and due to the U.S. decision to relocate the
Tribe to our current location without our consent. 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.
VII. Conclusion
The Tule River Tribe is in a water crisis. The crisis was, in part,
created by broken promises and previous failures of the U.S. to act.
Had action been taken even as far back as the 1870s to address this
situation, we would not be here today. Let us delay no longer. The time
for action is now to address the emergency conditions on our
Reservation and for our federal partners to join us in providing the
resources necessary to ensure a sustainable future for the Tule River
Tribe. Doing so will also benefit the communities outside our
reservation, providing greater water security and ensuring clarity of
title to existing state-based water rights.
We respectfully request that the House Subcommittee on Water,
Wildlife and Fisheries recommend passage of H.R. 8920 in the House of
Representatives. I thank Chairman Bentz and the other members of the
Subcommittee for the opportunity to fully express the importance to all
in resolving the Tule River Tribe's federal reserved Indian water right
claims.
______
Mr. Bentz. Thank you. I now recognize Governor Phillips for
5 minutes.
STATEMENT OF THE HON. LARRY PHILLIPS, JR., GOVERNOR, OHKAY
OWINGEH PUEBLO, OHKAY OWINGEH, NEW MEXICO
Mr. Phillips. Good morning, Chairman Bentz and
Congresswoman Leger Fernandez. Thank you for this, honorable
members of the Committee. I am Larry Phillips, Jr., Governor of
Ohkay Owingeh. I am here today with Lieutenant Governor Howie
Aguino and our eldest councilman, Anthony Moquino, to show the
support of our entire Tribal Council for this settlement. Thank
you for inviting us to this hearing. I have submitted written
testimony for the record on behalf of Ohkay Owingeh.
I ask Congress to support and authorize H.R. 8685. My
statements today will highlight several points of that
testimony. I would like to first talk about the bosque and the
water and their importance to Ohkay Owingeh.
Two things of the bosque, the waters that protect and
preserve our bosque and our lands are the very essence of what
it means to be Ohkay Owingeh. And our tribal language referred
to as [speaking Native language] is the meaning of prosperous
river lands and this living forest amongst our floodplains to
our rivers. In our ceremonies, we cover ourselves with the
attributes of our lands and waters of the bosque, to celebrate
and to give thanks for the emergence from our Mother Earth.
Our people have been deprived of this ceremony for 75 years
because of actions of the United States. The bosque was taken
away from us from two separate actions of the United States. In
1955, both Bureau of Reclamation and Army of Corps of Engineers
channelized the Rio Grande in an effort to move water away from
our section of the river to benefit users further downstream.
In 1956, the construction of the Abiquiu Dam changed the flows
of the Rio Chama. Both of these actions resulted in devastation
and resulted in depriving us our bosque and waters necessary
for a proper river.
We enter into this settlement in negotiations to protect,
preserve, and restore our water resources and the bosque. This
is the first tribal water settlement that I am aware of that
settles a claim by an Indian Tribe that the United States
confiscated tribal lands and waters in a river channelization
project, as I mentioned.
The United States bulldozed our rivers. It largely
destroyed our rivers and bosque. This needs to be fixed. The
settlement gives us the tools to do that. We seek congressional
approval and funding for a comprehensive water rights
settlement, a settlement that lasts for all time.
This settlement encompasses more than Ohkay Owingeh's water
rights. It is a regional agreement with regional benefits.
Ohkay Owingeh, the state of New Mexico, the city of Espanola,
and many small farmers in the Rio Chama basin together crafted
this agreement. This settlement approves water rights
reliability for all water users in the Rio Chama basin. In
exchange for our benefits, we will be giving up time immemorial
priorities to facilitate an equitable share of the water during
dry years. This settlement will increase water supplies. We
will work with our neighbors to find additional water to store
in existing reservoirs. The settlement will improve water
efficiency by authorizing funding and delivery infrastructure.
We will also provide economic benefits in the form of jobs.
We seek $745 million in Federal funds to implement this
agreement. New Mexico has committed to a local cost of $131
million. Ohkay Owingeh will use these Federal funds for many
purposes related to the settlement. These include, for example,
groundwater wells, water treatment facilities, ditch
improvements for irrigation to conserve water, water delivery
facilities for both farm and as a backup to help restore the
river and its adjacent vegetation in our bosque, and for start-
up costs to staff and manage administration of these resources.
We understand that this is fund-based settlement and that
Ohkay Owingeh will not be able to return for additional funding
if we under-estimate the cost of these projects. We accept that
risk.
This concludes my oral remarks. I am happy to answer
questions. Thank you.
[The prepared statement of Mr. Phillips follows:]
Prepared Statement of the Honorable Larry Phillips, Jr., Governor,
Ohkay Owingeh
on H.R. 8685
Introduction
I am Larry Phillips, Jr., Governor of Ohkay Owingeh, a federally
recognized Tribe in Northern New Mexico. I thank you for convening this
hearing and inviting me to testify. The welfare of the people of Ohkay
Owingeh is one of my primary responsibilities as Governor. I submit
this testimony on their behalf. We respectfully ask that Congress enact
H.R. 8685, the Ohkay Owingeh Rio Chama Water Rights Settlement Act of
2024.
At the outset, I wish to acknowledge and respect a Pueblo ancestor,
Po'Pay, who has been given the great honor of being recognized by the
State of New Mexico with a statue in the United States Capitol. Born at
Ohkay Owingeh in 1630, Po'pay lived with a desire to protect the lives
and health of his people, along with other Native people, and to
preserve culture and traditions so that my children and their children
know and understand not just their heritage, but who they are.
In 1680, Po'pay led a coordinated revolt by all Pueblos against
Spanish invaders. The invaders had enslaved us, taken our homes for
themselves, and suppressed with violence and executions our efforts to
practice our culture and honor our history. Po'pay was whipped for
having engaged in traditional Pueblo practices; the statue in the
Capitol shows the scars on his back. Together with his neighbors,
Po'pay drove the Spanish out of New Mexico and restored Pueblo
authority. For a period of 12 years, the Pueblos enjoyed again the
ability to govern themselves consistent with their traditions.
Po'pay gave us the opportunity to restore and maintain our
traditions in the face of outside challenges and enabled my ancestors
to address the return of the Spanish with a renewed strength. Po'pay
taught us how to both respect ourselves and our own culture and accept
the new reality of a different culture living in our lands. In many
respects, the water settlement you are considering is an extension of
Po'pay and his teachings, as we have accepted and embraced the needs of
our neighbors as part of this settlement, both politically and
culturally. This water settlement reflects our sacred promise to our
future generations to protect our lands and waters for their benefit.
Background of the Water Rights Settlement and Damage to the Bosque
This bill implements an agreement that settles a water rights
lawsuit filed by New Mexico to establish rights to the waters of the
Rio Chama Stream System. The State sought to quantify the Pueblo's
water rights. After many years of litigation, we negotiated the
quantifications that are established in the settlement agreement, which
will provide adequate water for our needs now and into the future from
the Rio Chama source on our lands. Because of the cultural importance
we place on water, however, this settlement is much broader in scope,
and more important than just those numbers, more important than simply
assigning limits to our water uses.
This same agreement also settles a second lawsuit, one that we
filed in the U.S. Court of Federal Claims seeking to restore the damage
to our cultural resources caused by the United States and the damage to
our people from being deprived the right to fully exercise their
religious beliefs and practices. By destroying the bosque on our lands,
the United States violated the constitutional principle that property
shall not be taken without due process and adequate compensation. Our
bosque is at the center of our cultural and religious practices. It is
a sacred place. By taking our bosque and preventing our tribal members
from being able to fully exercise their religious practices, the United
States violated its duty to protect the resources of the Pueblo.
In the 1950s and 1960s, the Bureau of Reclamation and Army Corps of
Engineers channelized that portion of the Rio Grande that flows through
Ohkay Owingeh's homeland. With bulldozers and other heavy machinery,
the U.S. agencies destroyed the ancient meandering ribbons of the Rio
Grande and transformed the river into something very different than
what the Creator gave us. The river became narrow and bounded on both
sides by levees. The U.S. intended to speed the flow and increase the
amount of water to be delivered through our lands to benefit junior
water users in southern New Mexico. The U.S. succeeded in achieving its
goals. Not surprisingly, the side channels, wetlands, robust plant- and
tree-life, and the animals of the bosque, all gradually began to
disappear. The groundwater table dropped. Over the last 70 years, this
bosque has withered and begun its path to complete destruction.
To compound the problem, in the 1960s the Army Corps constructed a
dam on the Rio Chama. The dam succeeded in its purposes of regulating
Rio Chama flows and storing water for release to farmers south of us.
The loss of flood flows in the Chama, which farmers had demanded, and
the decrease of water in the river led to the same disaster as occurred
on the Rio Grande: the slow death of the bosque.
The intentional destruction of the bosque is consequential not just
because the U.S. destroyed a large swath of two healthy and vibrant
rivers. This bosque is fundamental to Ohkay Owingeh traditional and
cultural practices. The Ohkay Owingeh national symbol contains images
of materials from the bosque. Our ceremonies are built upon, and our
regalia is made up of materials from the bosque. Our world revolves
around the bosque. The harm to our people from the loss of our ability
to fully practice and exercise our religion is nearly immeasurable.
Ohkay Owingeh people cannot sit by while our critical resources
wither and die. We must hold the U.S. to its responsibility to address
the damages it has caused. Although the full extent of the harm
suffered by the Ohkay Owingeh people is incalculable, this settlement
will provide funding to allow us to mitigate those damages.
The bosque restoration project is supported by the State of New
Mexico, city of Espanola, and the many parciantes on the acequias (the
small farmers) in the Rio Chama. They support the bosque restoration
project because they understand its importance to Ohkay Owingeh. But
they also support bosque restoration because they know that a healthy,
restored, and fully functioning bosque has benefits for all of New
Mexico, including improved water quality, groundwater recharge, habitat
for birds, fish, and plants, including species listed on the Endangered
Species Act. Bosque restoration and the benefits that brings to the
entire region is just one more way through this settlement that we take
care of our needs and at the same time, ensure benefits to our
neighbors and our State.
Separate and apart from our settlement, the U.S. Army Corps of
Engineers, through the Espanola Project authorized in the Water
Resources Development Act of 2018, Public Law 115-270, 132 Stat. 3830,
Section 1401(4), has undertaken a bosque restoration project that
includes a small part of our lands. This initial authorization will
restore a small portion of our bosque. The authorization contained in
this bill, H.R. 8685, will provide the means to finish the job.
This settlement is created by the people who live in that region.
We will share our water resources. We will protect and conserve our
water. We will respond together to the crises that will inevitably
come. We will celebrate together our successes as small farmers. Ohkay
Owingeh's neighbors, the signatories to this agreement, have agreed to
work with the Pueblo to enable us to restore the health of the bosque,
the most precious of our cultural resources. This agreement is a
product of all of us: our thinking, our work, our preparation for an
increasingly uncertain future. Now we ask Congress to partner with
these citizens of the United States and support us in managing our
water resources fairly, for the benefit of all in the region.
Specific Provisions of H.R. 8685
As authorized by H.R. 8685, the Pueblo agrees to limitations on its
current and future water uses; we waive our rights to a senior priority
to permit sharing our water resource with our neighbors during dry
periods; the Pueblo retains its ability to acquire water rights and
lands in the future from willing sellers. We are asking Congress to
approve the agreement and to appropriate $745 million for Pueblo
development of water infrastructure. The Legislation reflects an
agreement by the State of New Mexico for its cost share: $98.5 million
for irrigation improvements, $32 million for the city of Espanola water
infrastructure, and $500,000 for mitigation of well impairments. The
legislation in Section 5 confirms and establishes as Ohkay Owingeh's
federal water rights.
The provisions of the agreement are summarized here:
Irrigation--the Pueblo will have sufficient surface water
to irrigate our farmlands of 310.45 acres. The agreement
authorizes irrigation of an additional 1,562 acres formerly
owned and irrigated by the Pueblo; these lands and water
rights must be reacquired by the Pueblo from willing
sellers.
The Pueblo will have sufficient water for livestock.
The Pueblo will have a right to the use of 981-acre feet
per year (afy) from groundwater wells for current and
future domestic, commercial, and municipal purposes; most
of that water use is subject to offsets (the Pueblo must
replace the water it depletes from the system) to protect
downstream users and to ensure state compliance with the
Rio Grande Compact.
The Pueblo will have the right to restore the Rio Chama
bosque by diverting water from the river during high-flow
events under specified water conditions. The Pueblo in
addition may apply 250 afy to the bosque at any time by
diversions from the Rio Chama, or the use of groundwater or
irrigation return flows. The Pueblo expects high flow
events to allow significant improvements to the bosque, and
the yearly use of 250 af to be sufficient to maintain the
health of the bosque in between flood events.
As mentioned previously, the Pueblo will waive its senior
priority right to water and the parties will fairly
allocate among themselves water available during times of
shortage. The shortage sharing schedule will be in the form
of an annual agreement, binding on all parties, and
enforceable by the New Mexico State Engineer.
The parties have agreed to pursue water storage in
existing reservoirs as a joint effort.
Ohkay Owingeh and the city of Espanola have agreed to
avoid interference with each other's groundwater wells.
The State and Pueblo will exercise their respective
sovereign authorities over management of water resources.
The Pueblo, pursuant to its laws, will administer water
within the Pueblo Grant. The State, pursuant to its laws,
will administer water outside the Grant. The administration
of water rights will be conducted by both governments in a
public manner with full timely disclosure to the public.
The State has agreed to provide a fund to mitigate
impairment to domestic and livestock wells that might arise
from Pueblo water use.
Proposed federal funding for the Pueblo may be used to
acquire water rights, plan for and develop water-related
infrastructure, administration of water rights, and bosque
restoration.
The second part of the agreement provides funding for restoration
of the Rio Chama and Rio Grande bosque within the Pueblo Grant. The
damage to the rivers' riparian areas caused by the Bureau of
Reclamation and Army Corps of Engineers is significant, continuing, and
increasingly devastating to our cultural practices. The U.S. was
focused on getting water to farmers through the dam at Abiquiu and the
channelization of the Rio Grande and acted with disregard to the vast
damage to people of Ohkay Owingeh.
Ohkay Owingeh fully understands that S. 4505 authorizes a fund-
based settlement, which means that we are prepared to bear the risk of
underestimating the cost of constructing the water infrastructure and
restoring the bosque.
Ohkay Owingeh people were farmers and hunters a thousand years ago.
We still are. We were people who learned from our ancestors, followed
our traditional ways; we still do. We speak Tewa, our language. We hold
our ceremonies. We also build industrial parks, establish businesses
with operations throughout the country, build houses, run a government,
educate our children in our schools, and provide our community with
health care, public services, and jobs. Ours is a complex world. Our
ancestors are part of our daily lives. Yet we live in the 21st century.
On behalf of my people, our ancestors who were stewards of the
natural resources of northern New Mexico, and our children and
grandchildren, we urge this Committee to endorse our carefully crafted
plan to restore and maintain our primary cultural resource, the bosque.
River restoration is in the broad public interest. Restoration will
return to the people of New Mexico an environmental paradise. And
restoration will assure Ohkay Owingeh that its traditional practices
will continue.
______
Mr. Bentz. Thank you. I now recognize Governor Kucate for 5
minutes.
STATEMENT OF THE HON. ARDEN KUCATE, GOVERNOR, PUEBLO OF ZUNI,
ZUNI, NEW MEXICO
Mr. Kucate. Good morning. On behalf of the Zuni Tribe, I
want to extend my sincere thanks to the Subcommittee for
holding this hearing and giving me the opportunity to testify.
Zuni's reservation is the largest of New Mexico's 19
pueblos, containing almost a half-a-million acres within the
Zuni River basin in New Mexico, carved out from our ancestral
homelands. It is located in a very rural area of western New
Mexico, and is home to close to 10,000 members.
Long before the coming of the Spanish conquistadors, we
grew corn, squash, beans, and other food crops in our main
village along the Zuni River and in surrounding satellite
communities along tributary streams and springs, often using an
irrigation technique that we are famous for: waffle gardens.
Historical photographs showing the river and these gardens have
been submitted as supporting documents to my testimony today.
Our adaptive irrigation techniques and careful stewardship of
our water and lands allowed us to irrigate thousands of acres
of land. Not surprisingly, many of our prayers and rituals
recognize the importance of water and agriculture to our
culture and survival.
Our water supply was relatively stable until the late 19th
century, when the settlers upstream of our reservation began
diverting and storing virtually the entire flow of the Zuni
River's primary tributary. Clear-cutting of the forest in the
Zuni Mountains compounded our water supply woes, causing severe
erosion and clogging our waterways with silt. Consequently, the
Zuni River, once a perennial stream running through the heart
of our village, is now a mere trickle for the most of the year.
Unfortunately, instead of taking action to stop these
upstream diversions by the newcomers to the Valley, the Federal
Government encouraged settlement by non-Indians through a
poorly conceived attempt to centralize Zuni farming away from
lands near our eastern and northern borders. Disregarding our
traditional farming practices, the government constructed a
series of dams and reservoirs within our reservation. The
construction of the first and largest dam at what is called
Black Rock buried Zuni's sacred spring, Malokyatsiki, the
original home of our Salt Mother.
The dam failed in its first year, leaving a path of
devastation downstream. Although rebuilt soon after the
failure, it began silting immediately, and within 20 years, the
reservoir had filled with sediment, losing nearly all of its
storage capacity. Today, Black Rock Dam only serves to provide
limited protection. The other dams and reservoirs allowed in
the wake of Black Rock's failure were also poorly engineered
and not maintained, and they effectively ended our traditional
farming practices that had been successful for generations.
Today, our five irrigation units are largely useless and
need to be re-engineered and rebuilt. Our pending water
settlement over 25 years in the making will allow us to
rehabilitate these five irrigation units in a manner suited to
climatic conditions, as well as to Zunis' traditional
irrigation practices. It will provide us with funds to replace
our aged municipal water system, including constructing a water
treatment facility capable of addressing the high levels of
contaminants occurring in our groundwater, and constructing a
modern wastewater treatment facility.
For Zuni to sustain and grow, we must have modern and safe,
reliable drinking water and wastewater services. The settlement
will also provide funds to restore the Zuni River and Rio
Nutria channels to support water flows, including for
ecological and traditional purposes. We plan to rehabilitate
and improve livestock watering facilities, community water
hauling stations used by our farmers and ranchers.
In addition to resolving the Tribe's water rights in the
Zuni River basin, H.R. 8951 will ensure the continuation of
protections for the sacred Zuni Salt Lake and surrounding
sanctuary, and provide for the transfer to the Tribe in trust
of approximately nine sections of BLM land surrounding the
lake. The Zuni Salt Lake is located approximately 60 miles
south of our reservation in a remote area that is primarily
used for grazing and hunting. The lake and sanctuary are sacred
to our Tribe and other tribes and pueblos in New Mexico and
Arizona.
Ratification of our settlement 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 Tribe,
allowing us to protect and sustainably develop our community's
limited water resources, to restore traditional agriculture,
and to facilitate much-needed economic development. It will
also allow us to adapt to the growing impacts of climate change
The Tribe is not aware of any opposition to the settlement,
and it is supported by the only irrigation company in the basin
and by the state of New Mexico. Thank you. [Speaking Native
language.]
[The prepared statement of Mr. Kucate follows:]
Prepared Statement of Arden Kucate, Zuni Tribe Governor
on H.R. 8951
Good morning Chairman Bentz, Ranking Member Huffman, and members of
the Subcommittee. I am Arden Kucate, Governor of the Zuni Tribe in New
Mexico. On behalf of the Tribe, I want to extend my sincere thanks to
you, the Subcommittee, and Chairman Westerman for scheduling this
hearing. And I want to express my gratitude to Representative Gabe
Vasquez for his support and leadership in introducing H.R. 8951, along
with co-sponsors Representatives Stansbury and Leger Fernandez.
Zuni's history is a story of resilience and persistence in the face
of federal neglect and mismanagement. Our reservation contains almost a
half million acres within the Zuni River basin, carved out from our
ancestral lands where we have resided for millennia. It is located in a
very rural area approximately 125 miles west of Albuquerque, extending
to the Arizona border (See Attachment 1 for location map), and is
currently home to close to 10,000 members and their families.
Long before the coming of the Spanish conquistadors, we grew corn,
squash, beans, and other food crops in our main village along the Zuni
River, and in surrounding satellite communities along tributary streams
and arroyos, often utilizing an irrigation technique that we are famous
for--waffle gardens (See Attachments 2 & 3 for pictures of these
gardens). Our storied irrigation techniques and careful stewardship of
our water and lands allowed us to irrigate over 15,000 acres of land,
and provided our people with surplus supplies of corn and other
subsistence crops that could carry us through winter months and other
challenging periods.
Despite the region's semi-arid environment and highly variable
precipitation, our water supply was relatively stable until the late
19th Century when settlers located upstream of our reservation,
established the town of Ramah, and began diverting and storing
virtually the entire flow of the Zuni River's primary tributary. Clear
cutting of the forests in the Zuni Mountains compounded our water
supply woes, causing severe erosion and clogging our waterways with
silt. As a consequence, the Zuni River, once a perennial stream running
through the heart of our main village area (see Attachments 4 & 5), is
now a mere trickle for most of the year. Nevertheless, it remains
enormously important to our culture and traditions.
Unfortunately, instead of taking action to stop or limit these
junior diversions by newcomers to the Zuni River valley and taking
action to protect the watershed, the federal government, over our
objections, undertook ill-fated efforts to free up some of our
traditional agricultural areas for settlement by non-Indians--
constructing a series of dams and storage reservoirs in a poorly
conceived and executed attempt to centralize farming by our members.
Those efforts included the construction of a large dam and reservoir
just above our main village at what is known as Black Rock. The
construction buried our sacred spring, Malokyatsiki, the original home
of our Salt Mother (see Attachment 6). The dam failed in its first
year, leaving a path of devastation downstream. (See Attachments 7 &
8). Although it was rebuilt, it began silting in immediately, and
within 20 years the reservoir had filled with sediment, losing nearly
all of its storage capacity, and today it only serves to provide
limited flood protection.
In the wake of Black Rock's failure, the federal government
effectively reversed course and constructed a series of other smaller
dams and reservoirs near our traditional farming communities, but these
were also poorly engineered and not maintained. In addition,
construction of these dams and reservoirs destroyed Zuni's ability to
use traditional farming methods that had been successful for
generations. Today, our 5 irrigation units, and the diversion
structures and reservoirs serving them, are sediment-laden and largely
useless, and need to be re-engineered and rebuilt. In addition,
upstream, off-reservation groundwater pumping has caused declines in
stream flows and spring levels on our Reservation, and though these
will be challenging to reverse, we are determined to stop further
declines.
In addition to our irrigation infrastructure needing to be
overhauled, our domestic water system is in dire need of
rehabilitation. While we are a very traditional tribe, and our
geographic isolation has helped us to remain that way, we are also a
poor tribe, and high unemployment is a challenging problem. However, we
believe that outside businesses, including manufacturing businesses,
can be attracted to our reservation because our people are renowned for
their skilled work in producing world famous jewelry and pottery. But
we must be able to offer new businesses safe and reliable water supply
and wastewater services.\1\
---------------------------------------------------------------------------
\1\ We recently worked with our local rural electric cooperative to
provide highspeed internet throughout all of the populated areas of the
reservation, and to upgrade and improve the reliability of electric
service.
---------------------------------------------------------------------------
The settlement would comprehensively resolve all of Zuni's water
rights claims in the Zuni River basin, both surface and groundwater. It
will also provide the Tribe with funding for various water-related
projects including: 1) a much needed replacement of the Tribes aged
municipal water system which is currently dependent on 2 wells located
over 10 miles away from our village, and which has significant levels
of contaminates (including radionuclides and arsenic); 2) a modern
wastewater treatment facility that will allow the re-use of wastewater,
replacing our outdated sewage lagoons; 3) redesign and rehabilitation
of our 5 irrigation units and associated reservoirs in a manner that is
suited to climatic conditions, as well as to Zuni's traditional
irrigation practices; 4) restoration of the channels of the Zuni River
and the Rio Nutria, a tributary of the Zuni River, for traditional and
cultural purposes; 5) repairing and upgrading livestock watering
facilities, to allow for more efficient and even use of our range lands
by tribal ranchers; and 6) rehabilitating and developing additional
wells and community water hauling stations in areas outside of our main
village area.
In addition to resolving the Tribe's water rights in the Zuni River
basin, H.R. 8951 will ensure the continuation of protections for the
sacred Zuni Salt Lake and Sanctuary, and provide for the transfer to
the Tribe, in trust, of approximately 4,756 acres of BLM land
surrounding the Lake, subject to valid existing rights. The Zuni Salt
Lake is located in a remote part of western New Mexico, approximately
60 miles south of our reservation, in an area that is primarily used
for grazing and hunting (See Attachment 1 that shows Zuni lands,
including the Lake's location). The Lake and Sanctuary area are sacred
to our Tribe and a number of other southwestern tribes and pueblos,
including the Pueblos of Laguna and Acoma, as well as the Navajo, Hopi
and Apache tribes.
The Lake itself is a unique, naturally occurring saline lake,
maintained by a delicate balance of surface water and groundwater (see
Attachments 9 & 10 for pictures of the Zuni Salt Lake). For centuries,
Zuni and other tribes and pueblos have made pilgrimages to the Lake,
the home of Zuni's Salt Mother, for spiritual guidance and to collect
the salts for ceremonial and domestic use. The surrounding land, with
pilgrimage trails and other cultural resources, has similarly been
respected by tribes and pueblos as a sanctuary where no hunting is
allowed, and conflicts are set aside, in reverence for the sanctity of
the area. The Sanctuary contains numerous sacred places, religious
shrines, and ancestral archaeological sites, which H.R. 8951 will
protect. These protections reflect those already included in the BLM
management plan for the area, but will make them more permanent.
In addition, the approximately 4,756 acres of BLM land to be
transferred into trust is important for the protection of the Lake as
it encircles the geographic features surrounding the Salt Lake maar to
create a stronger natural physical buffer. This transfer is subject to
all existing grazing and other rights. There are also several hundred
acres of non-federal land within the acquisition area, and we have been
in communication with the land owner.
The pending settlement of the Tribe's water rights in the Zuni
River basin has been over 25 years 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
Tribe, allowing us to protect and sustainably develop our community's
limited water resources, to restore traditional agriculture, and to
facilitate much needed economic development. It will also allow us to
address and adapt to the growing impacts of climate change, which has
resulted in diminished snowpacks in most years, along with more intense
monsoonal storm events.
The Tribe is not aware of any opposition to the settlement, and it
is supported by the only irrigation company in the basin, the Ramah
Valley Land and Irrigation Company, and by the State of New Mexico. As
an integral part of the settlement, the State of New Mexico worked
closely with us to establish measures to help protect our Reservation
springs and streams and our sacred Salt Lake and Sanctuary.
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 Subcommittee to support House passage of this
legislation, which is critical to our future.
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__
Mr. Bentz. Thank you. I thank the witnesses for their
testimony. I will now recognize Members for 5 minutes each for
questions. We will begin with Congressman Rosendale for 5
minutes.
Mr. Rosendale. Thank you very much, Mr. Chair.
And thank you very much, Assistant Secretary Newland, for
coming in to support the bill today. I am sure everyone here
appreciates that, and it carries a lot of weight in this room.
A couple of things that I would like to make clear so that
people understand that this is not just an obligation that we
have to honor the treaty from 1855, but the water compact is a
very, very complex legal document, as I know Mr. Chairman
realizes, he has worked with them previously. And to me, to see
the amount of support that we have been able to get from across
the state, from all the different stakeholders. There are so
many different interests, and to have everybody come together
and support this compact is really an enormous achievement. It
truly is.
And just so you can also help to understand how much is
being lost right now, not only do we have the catastrophic
failure because of this over-100-year system, but even prior to
that we were already experiencing a loss of about 250 cubic
feet a second of the water. So, of the 850 cubic feet a second
that we were supposed to get, that the tribes are supposed to
get out of the river, it has already been reduced to 600 cubic
feet a second just because the facilities cannot handle that
additional water.
So, basically, Canada is getting that water. And while I
don't have any grind against Canada, it is water that we were
supposed to use. And what I like to say is that land is king,
but water is queen, and you must have both if the kingdom is
going to function properly. Again, I would like to thank the
folks coming from Montana to testify here today. And I am going
to start off with President Stiffarm.
I have a couple of questions for you so you can help
broaden the understanding for folks. What is the importance of
that Saint Mary's system to the reservation?
Mr. Stiffarm. Thank you for the question, Congressman
Rosendale, but the importance of that siphon is basically what
I said in my testimony, it is bringing that water downstream to
not only Fort Belknap, but to all the communities and the
farmers and ranchers downstream from the siphon.
But to Fort Belknap, our irrigation system is 100 percent
run and operated by tribal members, and have been since they
were developed in the early 1900s. That is where it is going to
affect the most if the Milk River goes dry, is our tribal
membership on the north end of the reservation.
Mr. Rosendale. And it is my understanding that the Milk
River actually goes dry, like, 6 out of 10 years if it does not
have this additional. And, again, we are talking about support
for tens of thousands of other folks there, as well.
Are all Montana counties and communities that will be
affected by this settlement on board with this agreement?
Mr. Stiffarm. Yes, they are. All across the heartland
throughout the state, the Governor, Lieutenant Governor, the
counties around us, and up and down the Hi-Line.
My predecessor, former President Andy Werk, worked hard on
getting all those support letters, and I picked up the ball
from when he left to where I am at today to get the support
where we are at, and I am here to testify.
Mr. Rosendale. And that is what I have recognized. And to
me, to see that many people, that collaborative work coming
together to bring those diverse interests is really remarkable.
How long have you been involved in these settlement
negotiations?
Mr. Stiffarm. I have been on council as a council member
for 4 years, and I have been sitting as the President for 2\1/
2\ years now. So, going on 7 years. And a pretty tough, hard
road.
Mr. Rosendale. How do you anticipate the benefits directly
to the reservation once we can get this passed?
Mr. Stiffarm. We will have some clean drinking water for
our community members, especially in the south and where the
mountains are, where we have that Pegasus mine, where it was
at, and our contaminated water coming off the mountains from
that mining. We may be able to pump some water up from the
Missouri River to our community members in the south end of the
reservation. That is a big part of my issues, so we have clean
drinking water for our people in the south.
Mr. Rosendale. Very good. And are you aware that the
alteration of the Senate bill and my bill to add the extra $250
million for the Blackfeet Tribe, while it might be well
intentioned, would actually extend the timeline for getting
your water compact signed into law?
Mr. Stiffarm. Yes, I am aware of that. To me, like I spoke
about a little bit in my testimony, as tribal people, we need
to stand together and help one another, and that is what we
need to do here today. The Blackfeet people have their people
to take care of. And they are our relatives, too. We have
family that are up there. We are all intermarried, and we have
to take care of one another that way, and that is why we
support them.
Mr. Rosendale. OK. Thank you so much for your testimony.
Mr. Chair, I yield back. Thank you.
Mr. Bentz. Thank you. I will now recognize Congresswoman
Leger Fernandez for 5 minutes.
Ms. Leger Fernandez. Thank you very much.
And to the witnesses, I really want to thank you because
what you have done, even though you were coming from so many
different states, is lay out the similarities with all of your
settlements and the importance that water serves, and that
these settlements are for your tribes.
Water infrastructure is expensive. The settlements are part
of the trust responsibility. And water is more than just what
comes out of your tap. Water is about your tribal sovereignty.
It is about the prosperity of your communities, and it is about
the prayers and sacred ceremonies that sustain your Tribe. So,
I really want to thank you for having those themes that we can
hear across the country. These are the same themes.
Assistant Secretary Newland, it has been raised that we
have these criteria for water settlements. I want to ask you,
do you believe that the water rights settlements for the New
Mexico tribes meet the criteria?
And as follow-up, if they meet the criteria, why should we
do this now, rather than waiting? This is a lot of money. But
why do it now?
Mr. Newland. Thank you, Congresswoman. Yes, is the short
answer. And in our evaluation, we believe that, in addition to
those, these help us fulfill our trust obligations, as I
mentioned in my oral statement, to ensure that if we are going
to protect the ability of tribes to live in their homelands,
that they have water to do that.
In response to your second question about why do this now:
(1) the short answer to that is any delay in bringing clean,
drinkable water to communities is going to harm the people who
live in those communities; and (2) we know from our experience
that these settlements only get more expensive, and
implementation only gets more expensive the longer we wait, and
not less. I worked at the Department when Congress enacted the
Crow Tribe Water Settlement Act about 15 years ago, and that
was an enormous settlement at that time. And now we are here
testifying on legislation with larger settlement costs. So,
that speaks to the urgency of doing this.
Ms. Leger Fernandez. Thank you. So, doing it now saves us
money.
Governor Phillips, our Committee often takes up laws that
really are remedying past injustices. And you did a beautiful
education of the Committee of what the United States has done
in the bosque area, and how that has really harmed the pueblo's
ability to engage in your ceremonial practice, in your prayer,
and your irrigation.
But also, can you add a little bit more about how hard it
is but how rewarding it might be to work in collaboration with
your neighbors to get something like this done? Because I know
we are not going to be able to hear from all of the tribal
leaders, but I know they have all engaged in this for these
settlements.
Mr. Phillips. Thank you, Congresswoman Leger Fernandez.
Yes, as part of the settlement discussions in the Aragon
settlement, at the table sat 89 acequias with about 400
diversions amongst that. The state of New Mexico, the city of
Espanola. It took us many years to understand that the
resources that we were fighting were over-adjudicated. And in
order for us to survive and meet Ohkay Owingeh's goal of its
restoration of its bosque area, we had to realize that shortage
sharing was the concept in which we all had to recognize.
So, in order for us to get our priority, which is our
reconnection of our lands to what we culturally use in a daily
practice, and that is our lives, we realized that the uses and
traditions of the acequias also are reliable and water every
day. And recognizing how to use the water we have in a turning
system in which we recognize the uses, priorities, and
recognizing that a shortage agreement amongst us was the way to
go about that. So, that was important for all of us to come to
the table, realizing that we all had to compromise in order for
it to be a success not only now, but into the future.
Ms. Leger Fernandez. Thank you.
And Governor Kucate, I had wanted to ask you about the
importance of the work that you have done with regards to Zuni
Salt Lake. As a very young attorney, I mean, maybe 20-some
years ago, I participated in the litigation to protect Zuni
Salt Lake from the mining claims. So, thank you for that work.
I have run out of time, but thank you for the work you are
doing, because I know that that sacred lake is important, as
you pointed out, to tribes across the region. So, our gratitude
toward you for including that in your settlement.
Mr. Bentz. Thank you. The Chair now recognizes Congressman
Fong for 5 minutes.
Mr. Fong. Thank you, Mr. Chairman and Ranking Member, for
the opportunity to speak in support of my bill, H.R. 8920. And
thank you to all the witnesses, as well, for being here.
This bill will settle Federal water rights claims made by
the Tule River Tribe, which has already been agreed upon by
local water users. The Tule River Tribe's reservation
encompasses portions of the Sierra Nevada mountain range, which
I represent, and it is imperative that this Tribe receives the
water supply that is needed.
And I want to thank Vice Chairman Shine Nieto for his
testimony this morning.
During the summer, California, and specifically the Central
Valley, can experience droughts depleting water in the South
Fork of the Tule River, which is where the Tribe gets its water
from. Because of this, members of the Tribe are at times forced
to get bottled water or utilize tanked water systems for basic
daily activities like cooking and bathing.
In addition, this area is prone to wildfires. And when the
Tule River must be used as a water source to fight these fires,
it causes the Tribe to suffer the consequences of the dried-up
water source. And I have seen all of this firsthand.
Rather than filing a lawsuit, the Tule River Tribe worked
with the surrounding stakeholders to establish an agreement
that satisfies the water needs for all parties involved. The
first settlement was agreed upon in 2007. It is time that
Congress supports the Tribe and its neighbors in their
settlement, and pass H.R. 8920 to provide them with a safe and
reliable water supply, and I urge my colleagues to support this
bill as it will provide a long-term solution to the water needs
of this Tribe.
If I could ask Vice Chair Nieto a few questions, what is
the Tribe's current situation related to water?
And if you could, offer some specifics of the type of
infrastructure that would be constructed in the settlement that
would be helpful to the community.
Mr. Nieto. Thank you, sir. Yes, our Tribe's first needs are
just to have drinking water that is available to us that does
not look like iced tea instead of just regular water.
But with the dam situation that we want to build the
infrastructure for, that would help us control the river a
little bit more and actually help the river not to dry up, a
percentage of the water that our downstream users can also use.
So, they are going to benefit off this because nowadays, and
with the droughts and everything, the river doesn't even make
it down to, it dries up before it even leaves our reservation
nowadays. So, that water would be in control with the dam, the
reservoir. It would help out the whole river and all the
downstream users. That is why they support us while we are
here, and hoping this will pass and help us out.
But us being in a remote area and mostly mountains and
granite all around us, we would have to put a lot of holding
tanks for the water also to help out. So, that is where most of
the infrastructure costs comes from. We would have to use that
to build more holding tanks for our water for our housing and
bringing people home.
Mr. Fong. And when I was on the reservation, there were
some additional pipelines, I think, that would move the water
around. Would that also be constructed, as well?
Mr. Nieto. Yes. Those pipes have been there since 1963. So,
they are probably full of sediment from the river going dry.
And where the pipe comes into our main water source, the water
doesn't reach it sometimes. So, most of that pipe is probably
full of sediment and mud and everything else that goes into
those pipes. So, we would like to get those pipes redone and
not patched up how they are.
And I thank you for coming to our reservation and seeing
that firsthand, as well as Mr. Newland coming.
Mr. Fong. What is the current situation when it comes to
water on the reservation?
Mr. Nieto. We run out of water every year. It just depends
on where you are at the time, whether you are in this section
of the Tribe or up, low, it just switches on and off. It is
like someone is cutting your water off.
So, with this reservoir that we want to build, it will help
all of the situation on the whole reservation plus, like I
said, bring people home that are off the reservation because
right now we have a lock on any new housing built because we
have no water for those new houses that we would be able to
build.
Mr. Fong. And then lastly, could you share how long have
you been working with the local water users in developing this
agreement, and are you aware of any opposition?
Mr. Nieto. Back in 1971, then-Emeritus Chairman Garfield
started working with the downstream users, and had great
relationships with them. And he has been pushing this since
1971, and he heard about 1922, when our water rights were given
away to our river. So, he has been trying since 1971 to get our
water back.
Mr. Fong. Thank you, Vice Chairman, for being here.
And I thank you, Mr. Chairman. I yield back.
Mr. Bentz. The Chair recognizes Congressman Stanton for 5
minutes.
Mr. Stanton. Mr. Chairman, thank you for allowing me to
participate in today's important hearing. I would like to
discuss two of the important and historical tribal water
settlements that will be discussed here today, both in this
panel and some of the future panels, as well. These settlements
will resolve long-standing claims for four tribes in Arizona,
provide a reliable water supply to these communities for
generations, and greatly benefit all of the people of the state
of Arizona.
And I want to extend a special welcome to Navajo Nation
President Nygren, he will be in, I think, in the future panel,
Hopi Vice Chairman Andrews, San Juan Southern Paiute Vice
President Preston, Yavapai-Apache Nation Chairwoman Lewis, and
the Director of Arizona's Department of Water Resources, Tom
Buschatzke. Their leadership and the leadership that came
before these incredible leaders has been key to this critical
effort.
Each of you has put long-standing differences aside to get
to these agreements for the greater good of your communities,
neighbors, and all of Arizona. That is exactly the type of
leadership we could use more of here in Congress.
As we continue to adapt to the impacts of climate change
and a drier future, these tribal water settlements are critical
to securing our water future in Arizona because they provide
certainty that water will be available now and for future
generations, and certainty of Federal investments to harness it
for future beneficial use.
This was not an easy process. It has taken decades, and I
want to recognize the difficult and painstaking work it has
taken for each of the parties to reach these critical
agreements.
I am proud to lead the Northeastern Arizona Indian Rights
Settlement Agreement, along with my colleague from Arizona,
Congressman Ciscomani, to address one of the longest running
water issues in Arizona for the Navajo Nation, the Hopi Tribe,
and the San Juan Southern Paiute Tribe. Together, many tribal
members lack access to water. But this settlement has the
potential to change that by providing a reliable and safe water
supply and the resources necessary to build the infrastructure
to deliver it to tribal families.
Under the settlement, the tribes would be guaranteed access
to over 56,000 acre-feet of Colorado River water, along with
specific groundwater rights and protections. Critically, this
settlement also allows for the leasing of Navajo Nation water
into the Phoenix Tucson Urban Corridor, providing a badly-
needed water source for central Arizona during a time in which
their water supplies have already been significantly cut due to
Colorado River shortage.
Additionally, I have joined Congressman Schweikert in
introducing the Yavapai-Apache Nation Water Rights Settlement
Act that will bring additional water supplies to the Verde
Valley, and to help protect the flow of the Verde River to
ensure downstream users, including the city of Phoenix,
continues to receive the water it needs. The settlement
provides the Yavapai-Apache Nation with confirmed rights to
4,610 acre-feet of water per year. It also authorizes funding
to build and maintain a central water infrastructure, including
the Cragin-Verde Pipeline and a water reclamation facility to
make sure the Nation can use every drop of water efficiently
and effectively.
These critical settlements demonstrate what people with
widely different backgrounds, histories, and circumstances can
accomplish when they choose to reject division and instead work
together towards a common goal. Arizona's bipartisan work in
sustainable water management is a model for the country, and I
am proud to support it.
Mr. Chairman, I appreciate the work that this Subcommittee
is doing in considering these settlements so quickly, and I
look forward to working with you to get each of them signed
into law this year. Thank you for letting me participate in
today's important hearing.
Mr. Bentz. Thank you. The Chair recognizes Congressman
Vasquez for 5 minutes.
Mr. Vasquez. Thank you, Mr. Chairman.
Governor Kucate, thank you again so much for being here
with us today. Governor, in addition to the support of the
State of New Mexico's Governor, Michelle Lujan Grisham, the
State Engineer, Mike Hamman, the settlement agreement is
supported by the Ramah Land and Irrigation Company, the only
irrigation company and the largest non-Indian irrigator in the
basin. Is that correct?
Mr. Kucate. Correct.
Mr. Vasquez. Thank you. And significantly, the company's
water rights, as well as those of all other non-Indian water
users in the basin, have already been quantified, and the
settlement essentially protects those rights from a priority
call by the Tribe. In short, all of these water users in the
basin would benefit from this settlement, and I am not aware of
any opposition to it.
Are you aware of any opposition to this, Governor?
Mr. Kucate. Yes.
Mr. Vasquez. You are aware of opposition, or no opposition?
Mr. Kucate. Can you repeat the question again?
Mr. Vasquez. Are you aware of any opposition to this water
settlement?
Mr. Kucate. No. We have been making every effort
proactively to talk to some of the folks in the county area, so
at this point there really isn't anyone in any opposition.
Mr. Vasquez. Thank you so much, Governor. And could you
share with this Committee specifically how this legislation
would benefit the people of Zuni?
Mr. Kucate. Yes, thank you. As a child growing up in Zuni
Pueblo in Rio Nutria, we had a living river. And times have
changed. This settlement is really significant for our people
to be able to at least have the opportunity to sustainably
develop limited water resources, and also restore our
traditional agriculture, which is the cornerstone of our
cultural beliefs and practices, and facilitate economic
development opportunities.
And then also to ensure that the preservation of our Zuni
Salt Lake continues, which is very significantly a value of
principle for our way of life.
Mr. Vasquez. Governor, if you could, just expand on the
importance of the Zuni Salt Lake to your people.
Mr. Kucate. Zuni Salt Lake is something that has been a
part of our way of life since the emergence of our people. And
all these centuries of years the Zuni people and other tribes
have made pilgrimages to the home of the Salt Mother. And it is
very significant to all of us for spiritual guidance, and we
also collect the salt for ceremonial and household purposes and
use.
Mr. Vasquez. Thank you, Governor. How did upstream
development on the Zuni River have an impact on your Tribe?
Mr. Kucate. Well, as I indicated, we have been able to live
off our Zuni River for thousands of years. And since the way
that things had occurred, the river is very significant for our
way of life in terms of our culture, our religion, and our
traditional doings that the people make offerings to the river.
And that is why I really like for our people to have our river
returned to us.
Mr. Vasquez. Thank you, Governor.
This legislation is incredibly important to Zuni and to my
constituents. I appreciate the Committee's consideration of
this legislation, and I urge all of my colleagues to support
it.
Thank you, Mr. Chairman, I yield back.
Thank you, Governor.
Mr. Bentz. Thank you. And I think I am the last one, so I
will recognize myself for 5 minutes.
Assistant Secretary Newland, I think that the
quantification of how much water a Tribe is entitled to is of
great interest to me. And I was reading the various cases and
law review articles on this just last night on the airplane
flying in from Oregon. And it reminded me that there is a
difference of opinions, shall we say, in what that
quantification should be based upon.
If we go back to Arizona v. California, the Supreme Court
pointed out the practicably irrigatable acreage approach. Is
that still, in your opinion, the measure, the quantification of
tribal rights?
Mr. Newland. Thank you, Mr. Chairman.
Well, you have me beat in terms of having an up-to-date
understanding of the history of this law. It has been a while
since I read a law review article.
In terms of the quantification, I think the important thing
to note here, I think you have gotten a flavor of already, is
that each tribe's circumstance is different, or often within
the same state. So, when you look at the Tule River Indian
Tribe, for example, they are on the slopes of the Sierra Nevada
mountains, and irrigable acreage as a standard is going to be a
lot different than it would be, say, at Fort Belknap.
Mr. Bentz. If I may, because we are running out of time,
perhaps you can put in writing that standard that you think
applies to each one of these, because you are in charge of the
various groups doing the negotiations. And if we look back at
the Winters Doctrine, it was based upon the purpose of the
reservation to begin with, and that is how it works. So, if I
am going to go to all of those who need to assist in funding
each of these, the $12 billion it is going to take, I need to
be able to call out the standard. So, will you provide it for
me?
Mr. Newland. We can certainly follow up, Mr. Chairman. I
just wanted to make the point that it is unique in each case.
Mr. Bentz. It is, but I just want to go back because all of
us struggle to find something we can point at to say this is
the foundation for the determination of that amount of water
that each Tribe is entitled to under the Winters Doctrine. So,
that goes to the purpose, and that goes to irrigatable acreage
back in the Arizona v. California case. That has been a while.
So, I just want to know what is being applied now so that I
can share it with my colleagues when they say, hey, Chair
Bentz, you are asking for $12 billion. What is the foundation?
So, you need to help provide it, if you would, please.
Mr. Newland. I would be happy to do that, Chairman.
Mr. Bentz. Thank you. I want to go to another issue that is
of huge importance, and it is the fact that operation and
maintenance costs are not supposed to be included in these
agreements. At least that is what is called out in the 1990
Bush administration administrative rule that still, as I
understand it, applies. I won't have time to ask each one of
the witnesses to do this question, so I will pick on Governor
Phillips.
In your opinion, looking at the proposed settlement, what
in it is going to make the Tribe enough money to pay for the
O&M costs of the new investment? Because what I see happening
is new investment, but then not necessarily the money that is
necessary to maintain it. So, tell me what, in your opinion, is
going to be used to pay for the O&M costs of whatever it is
that you are going to hopefully get in your settlement
agreement?
Mr. Phillips. Thank you for that.
Well, part of the understanding of the system is that we
will have the capacity to develop and have businesses come on
now that we have a secured domestic system that will offer the
uses of that.
But secondly, as for surface rights, we will also have the
capacity to utilize for subleasing of that water under there,
so those will be the economic----
Mr. Bentz. Yes, and I was going to go to exactly that, the
leasing that occurred perhaps just as recently as last year on
the Colorado.
But what I am most interested in, there appears to be means
of generating income once you have a water right that has been
quantified that you can then deal with. But is it built in to
each of these settlement agreements, this future commitment, if
you will, to maintaining the new infrastructure that the United
States is going to help pay for?
In your opinion, should that be a requirement in each of
these settlement agreements?
Mr. Phillips. You are correct on that a lot of these
infrastructures are built for 50 years, and the capacity there
is it grows and there is going to be need to improve and
maintain them.
And I agree that there should be a mechanism that is
offered to fund those opportunities where O&M is required, and
replacement as these infrastructures get there. But that is the
understanding now, is that O&M isn't part of it, so there are
mechanisms, at least in Ohkay Owingeh, where we are looking to
replace and understand what it is going to cost us in the
future. But getting the water and the resources is the first
opportunity for us to have those discussions.
[Pause.]
Mr. Bentz. OK, my time is expired, so I am going to
exercise my prerogative as Chair. And since there are only two
of us left, you are recognized for 5 minutes.
Ms. Leger Fernandez. Thank you very much, Mr. Chair.
And as it has worked in New Mexico, and I think that this
is really a highlight of how this works, is that we can look at
the settlement that was engaged in with Navajo and the
Jicarilla Apache Nation, and in that instance they did exactly
that. They used the water rights to lease them, for example, to
Santa Fe and to downstream. And that was one of the ways in
which they provided resources back to be able to maintain the
operations.
Governor Phillips, if you can speak to the fact that, for
example, the restoration work that you were doing on the bosque
actually increases the availability of water. So, in essence,
are you going to be looking at, through these water rights
settlements, an ability to generate more revenue?
And I think you were getting to that. But if you can, give
us some examples of what you anticipate that would generate the
additional revenue that would allow you to maintain the system,
including any costs and related to the actual water delivery
systems. If you could, sort of tell us a little bit of what you
could see in the future regarding your water rights.
Mr. Phillips. Thank you for that, Chairwoman Leger
Fernandez, you are very right. As the ecosystem and the
charging of the system in the bosque area, there is plenty of
carriage water that can also be used and supported by the
remaining system. With that and the recharging of the
groundwater, there are efforts that not only Ohkay Owingeh see,
but the surrounding areas are replenished for the uses of the
water. That is important. Not only will Ohkay Owingeh see that,
but the surrounding communities downstream from us will reap
the rewards of having water, that it isn't just sitting there
and evaporating in that.
Ms. Leger Fernandez. Since I actually now have a little
time because we have such a generous Chair, for some of the
other non-New Mexico tribes, can you answer that question of
how, by settling the water rights, you are actually also
settling the water rights of your neighbors? And that includes
their ability to develop economically.
And I think that in some ways maybe President Stiffarm or
Chairman White Clay might have addressed a bit of that. If you
want to, add a little bit to how you see that this is basically
an economic generator for your Tribe and the surrounding
communities.
Mr. Stiffarm. Well, thank you for the question. I will go
first, and then I will let the Chairman go after me.
But real quickly, the impact that Fort Belknap's settlement
is going to have for our surrounding communities is that the
reservoirs that we are going to be building to store water
would help prevent what is happening today and in the future in
the years down the road with that siphon break is that the Milk
River is going to dry up, our water source is going to dry up.
We have those dams built, and the water storage will have that
to fall back on down the road. And we can use them, charge them
O&M to irrigate their crops, their livestock, feed and water
them.
But more importantly, other than a dollar figure on these
settlements, is the life that it is going to keep for people
for generations to come.
Mr. White Clay. Thank you. Just getting into that, in my
area we are very rural. We have a huge land base through our
allotments and through tribal membership ownership. A lot of
our people are ranchers and farmers. And with our neighbors, we
have an irrigation delivery system that we have been building,
rehabbing, and moving forward with.
Our settlement was started 15 years ago, like the Assistant
Secretary said, and we have been making vast improvements
through my administration. We have had close to, I want to say,
16 irrigation improvement projects so far that we have
completed. We are continuing to complete those irrigation
projects to benefit the whole community, because in our corner
of the reservation we do have community members, partners that
are non-tribal that we work with. And to be part of a whole
ecosystem and economy, we have to work together to continue the
reservation to thrive and not only just the reservation, but
our surrounding areas to thrive. Because in our corner of
Montana, agriculture is key to that.
Because of our main revenue sources going away, which was
coal, we are now looking towards rebuilding and doing a lot
more agricultural-based revenue from that. Thank you.
Ms. Leger Fernandez. And thank you.
My time is expired, and I yield back.
Mr. Bentz. I want to thank the witnesses for their
testimony and the Members for their questions.
I will now recognize our third panel.
Mr. David Palumbo, Deputy Commissioner of Operations with
the Bureau of Reclamation; the Honorable Craig Andrews, Vice
Chairman of the Hopi Tribe; the Honorable Tanya Lewis,
Chairwoman of the Yavapai Nation.
If everyone will stay quiet, please, we are still
continuing the hearing. Thank you. Take your conversations
outside at least.
The Honorable Buu Nygren, President of Navajo Nation; and
the Honorable Randall Vicente, Governor of the Pueblo of Acoma.
We will wait for a few minutes until everyone settles down.
[Pause.]
Mr. Bentz. Let me remind the witnesses that under Committee
Rules, they must limit their oral statements to 5 minutes, but
the entire statement will appear in the hearing record.
I now recognize Deputy Commissioner Palumbo for 5 minutes.
And if everyone will please quit talking, or go out in the
hall if you are going to continue talking, thank you.
Deputy Commissioner.
STATEMENT OF DAVID PALUMBO, DEPUTY COMMISSIONER OF OPERATIONS,
BUREAU OF RECLAMATION, DEPARTMENT OF THE INTERIOR, WASHINGTON,
DC
Mr. Palumbo. Good afternoon, Chairman, Ranking Member, and
members of the Subcommittee. I am David Palumbo, Deputy
Commissioner for the Bureau of Reclamation within the
Department of the Interior. Thank you for your invitation to
discuss the second 6 of 12 bills before the Subcommittee today
complementing the testimony from my friend and colleague,
Assistant Secretary Newland, on the first six bills. I am
honored to be sitting here today with these tribal leaders.
Commissioner Touton wanted me to share her gratitude for
her recent visit this past weekend to the homelands of the
Navajo Nation and the Hopi Tribe, and she also wanted me to
share her appreciation to the Subcommittee for holding this
hearing.
The United States acts as a trustee for the land and water
rights of tribes, American Indians, and Alaska Natives. These
obligations are about equity and ensuring tribes and their
citizens can maintain their existence on lands the United
States holds in trust for their benefit. Water is among the
most sacred, life-sustaining and valuable resources to Tribal
Nations.
The Department strongly supports resolving Indian water
rights claims through negotiated settlements to help ensure
Tribal Nations have safe and reliable water supplies,
improvements to environmental and health concerns, economic
growth, and tribal sovereignty and self-sufficiency. All these
bills seek to fulfill our trust responsibility to Indian
tribes. The Department of the Interior and the Bureau of
Reclamation take these responsibilities seriously, and we look
forward to discussing these bills with you today.
H.R. 1304 would create new settlements for the Rio San Jose
and Rio Jemez in New Mexico, home to the pueblos of Acoma and
Jemez, Laguna, and Zia. This legislation is designed to meet
all four pueblos' current and long-standing needs for water by
providing trust funds that could be used by the pueblos
according to their needs and their decisions.
H.R. 3977 would amend the Northwestern New Mexico Rural
Water Projects Act by increasing the authorized project
ceiling; further supporting tribal operations, maintenance, and
replacement costs; expanding the Tribe's service area to serve
the Navajo Nation's four chapters in the Rio San Jose Basin in
New Mexico and the Lupton community in Arizona; capping the
city of Gallup's repayment obligation; authorizing a deferred
construction fund; extending the completion deadline to
December 31, 2029; and eliminating double taxation.
Reclamation has made substantial progress implementing the
settlement and constructing project features, and supports the
additional funding needed to ensure it is completed.
H.R. 6599 would make a technical correction to the Omnibus
Public Land Management Act of 2009 and the Claims Resolution
Act of 2010 to authorize funding for deposit into the Navajo
Nation Water Resources Development Trust Fund, the Taos Pueblo
Water Development Fund, and the Aamodt Settlement Pueblos Fund
equivalent to the amounts that would have been accrued to the
trust funds if the Department had the authority to invest the
funds upon original appropriation.
H.R. 8940 resolves water rights claims in Arizona for the
Navajo Nation, Hopi Tribe, and the San Juan Southern Paiute
Tribe. This legislation ratifies their settlement agreement and
confirms each Tribe's Colorado River and other water rights.
The Department supports the opportunity for all tribes to enjoy
the cultural, spiritual, and physical, as well as the economic
benefits of their water rights, and thus supports the inclusion
within the settlement the allowance for the tribes to use,
store, and lease Colorado River water off reservation.
The Department has frequently met with and worked with the
tribes throughout the year to reach a negotiated settlement.
The Department remains committed to addressing any remaining
concerns, and I also want to echo Assistant Secretary Newland's
commitment to completing this settlement as soon as possible,
and fully support it.
H.R. 8945 would resolve the Navajo Nation's water rights
claims in the Rio San Jose Basin, ratifying the Navajo Nation's
water rights from surface and groundwater sources. Together
with H.R. 1304, this legislation would settle all tribal water
rights in the Rio San Jose Basin, bringing stability to the
basin for all water users.
H.R. 8949 resolves water rights claims of the Yavapai-
Apache Nation. It ratifies the settlement agreement and, in
addition to the associated water rights among other terms, it
provides for the planning, design, and construction of the
Cragin-Verde Pipeline and the Yavapai-Apache Nation drinking
water system. While the Department supports the bill's goals,
concerns about the scale, costs, and some of the provisions
remain and will need to be addressed.
We thank the Subcommittee for the opportunity to testify
today. We support these bills, and are ready to work with our
tribal partners and the Subcommittee on resolving outstanding
issues. We look forward to continued collaboration with our
partners to find comprehensive solutions critical to the
success of our mission. Thank you.
[The prepared statement of Mr. Palumbo follows:]
The statement from the Department of the Interior can be found on page
60.
Mr. Bentz. Thank you. I now recognize Vice Chairman Andrews
for 5 minutes.
STATEMENT OF THE HON. CRAIG ANDREWS, VICE CHAIRMAN, HOPI TRIBE,
KYKOTSMOVI, ARIZONA
Mr. Andrews. Thank you. [Speaking Native language.] Good
morning, Chairman Bentz, Ranking Member Huffman, and members of
the Subcommittee.
I also want to thank Representative Ciscomani and the
entire Arizona delegation for their work on this important
legislation.
The settlement stems from 50 years of negotiations. For
years, many thought it would be impossible for all the parties
to come together and find compromise. But here we are today. It
is no secret that Arizona and much of the West is in a water
crisis. I am proud that the parties were able to come together
in the midst of this crisis to produce a settlement that will
benefit all of our communities and offer all of our future
generations water security.
[Speaking Native language.] Our ancestors have resided in
northeastern Arizona since time immemorial. Upon emergence into
this world, our people encountered the deity, who I will refer
in English as the original caretaker, who gave us his blessing
to live on the land. The caretaker required our ancestors to
follow in his path as humble farmers, and to respect the land.
Since that ancient time, we have remained in Hopitutskwa, our
traditional homeland, where we still reside today. Untold
generations of Hopisinum have lived on this land, preserving
and conserving our water.
When the United States created the Hopi Reservation, it cut
us off from much of our Hopitutskwa. It landlocked and
waterlocked us, and completely surrounded us with the Navajo
Reservation. The Hopi Reservation stands separated from many of
our traditional water sources. The current water supplies on
the reservation cannot sustain our population or growth into
the future. Unlike others, Hopi cannot simply move away to
where there is more water. We have a sacred covenant with the
original caretaker to be the stewards of this land. Our
culture, tradition, and religion are tied to this place. We
cannot and will not leave.
Fortunately, the Settlement Act will ensure that my people
have water for our current and future needs. The Settlement Act
will accomplish several things. It will allow Hopi to continue
to fulfill our covenant with the original caretaker as stewards
on Hopitutskwa. It will provide the Hopi Tribe, Navajo Nation,
and the San Juan Southern Paiute, who, unfortunately, were not
able to testify today, with reliable water. It will construct
the iina ba paa tuwaqat'si pipeline to serve the tribes. It
will provide us with the reliable upper basin water. It will
ensure that groundwater is managed appropriately. It will
create multiple trust funds for the tribes to plan, construct,
and operate water supply infrastructure. And it will create
certainty for non-Indian communities.
I understand and appreciate the cost of this Settlement
Act. This settlement covers more Native Americans than any
other in U.S. history. It addresses the severe infrastructure
challenges caused by decades of Federal neglect. On our
reservation, approximately 30 percent of Hopis lack water.
Settling our water claims means nothing if water doesn't reach
our homeland. The infrastructure to accomplish this is
expensive, but necessary. This isn't just a statistic. It is my
family's reality. Our home does not have running water. The
settlement will fix that for my family and others living
without running water. [Speaking Native language.] Water is
sacred. [Speaking Native language.] Water is our life.
I appreciate the opportunity to be here today and welcome
any questions.
[Speaking Native language.] Thank you.
[The prepared statement of Mr. Andrews follows:]
Prepared Statement of Craig Andrews, Vice Chairman of the Hopi Tribe
on H.R. 8940
Chairman Bentz, Ranking Member Huffman, and members of the
Subcommittee on Water, Wildlife, and Fisheries, my name is Craig
Andrews and I serve as Vice Chairman of the Hopi Tribe. Thank you for
the opportunity to testify on behalf of the Hopi Tribe and its members
in support of H.R. 8940, the ``Northeastern Arizona Indian Water Rights
Settlement Act of 2024.'' I also want to thank Representative Ciscomani
for introducing this historic bipartisan bill in the House, and
Representatives Stanton, Crane, Schweikert, Grijalva, and Gallego for
joining as cosponsors. I also want to thank our Arizona Senators Kelly
and Sinema, who jointly introduced this bill in the Senate.
Hopi are northeastern Arizona's most ancient inhabitants.
Archaeological records show that our ancestors in the region date back
to prehistoric times. Our oral histories go even further back.
According to Hopi oral history, upon emergence into this world, our
people encountered the deity who I will refer to in English as the
Original Caretaker, who gave them his blessing to live on the land. The
Original Caretaker required that the Hopi follow in his path as humble
farmers and respect the land through religion and guidelines that he
passed on to them. A covenant was thus established between Hopi and the
Original Caretaker in which land was set aside for the Hopi to live as
stewards.
The Hopi Reservation was created to be a permanent homeland for the
Hopi people. However, when it divided up tribal lands in northeastern
Arizona, the United States government landlocked the Hopi Reservation
within the Navajo Reservation. As a result, we were cut off from direct
access to many of the water resources that sustained our ancestors for
thousands of years. The water resources we are left with on the Hopi
Reservation are severely limited and inhibit our ability to experience
the true tribal sovereignty and economic self-sufficiency which is our
right under the law of the United States of America.
Despite the dry, arid conditions of our Reservation, Hopi have
pushed the bounds of human ingenuity, finding ways to sustainably use
every available water resource to the maximum extent possible to uphold
our covenant with the Original Caretaker and ensure these lands remain
our home. But even as experts in desert survival since time immemorial,
Hopi cannot alone keep pace with the severe water scarcity and
uncertainty of today and tomorrow.
The Northeastern Arizona Indian Water Rights Settlement Agreement
has shown the Hopi People that we are not alone. Through the
collaborative efforts of a historic coalition of tribal and non-tribal
parties--representing approximately one-third of Arizona's geographical
extent--Hopi can finally envision a future with a reliable supply of
safe, clean drinking water and essential water infrastructure. Among
other things, the agreement makes available to the Hopi Tribe diverse
water sources to meet future water needs on the Hopi Reservation,
including reliable mainstem Colorado River water. It also includes
inter-tribal agreements between the Hopi Tribe and the Navajo Nation to
manage and protect groundwater resources shared by the tribes,
highlighting principles of sustainability and cooperation.
For the Hopi Tribe, passage of the Northeastern Arizona Indian
Water Rights Settlement Act of 2024 is not just a legal milestone, it
is a path forward. This Act will provide the Hopi Tribe with access to
reliable water and water infrastructure necessary to ensure the health,
well-being, and economic prosperity of the Hopi People for generations
to come. Of paramount importance to Hopi, this settlement and the
infrastructure made possible by this Act provide a way for Hopi to
fulfill its covenant with the Original Caretaker: to continue to live
as stewards of Hopitutskwa.
I. A Brief History of the Hopi People and Hopi Lands
The Hopi Tribe is a tribe of Hopi Indians organized under Section
16 of the Indian Reorganization Act of June 18, 1934 (25 U.S.C.
Sec. 476), and duly recognized by the Secretary of the United States
Department of the Interior (89 Fed. Reg. 944, 945 (Jan. 8, 2024)).
We are an ancient, agrarian people with one of the oldest cultures
in North America. Archaeological evidence indicates that present day
Hopi are a Puebloan people descended from the ancient Basketmaker
culture that existed in the Four Corners area from prehistoric times.
The archaeological record confirms centuries of continuous,
uninterrupted occupation of the Hopi ancestral territory culminating in
the lifeway of our contemporary Hopi people. Indeed, after extensive
fact-finding, the court in Healing v. Jones concluded that ``[n]o
Indians in this country have a longer authenticated history than the
Hopis.'' Healing v. Jones (``Healing II''), 210 F. Supp. 125, 134 (D.
Ariz. 1962), aff'd, 373 U.S. 758 (1963) (per curiam).
For thousands of years my people have lived and farmed the valley
floors, terraces, and tops of three mesas on the Colorado Plateau,
using a variety of specialized farming techniques adapted to the arid
region. Hopi field types included flood-water fields, akchin fields at
the mouths of arroyos, sand dune seepage fields, irrigated terraces fed
by springs, and irrigated fields fed by canals and reservoirs. Each of
these field types took advantage of the scarce water available in the
region. Hopi also hunted game, had poultry flocks, and gathered native
seeds and plants to supplement their agrarian lifestyle. Following the
introduction of livestock by the Spanish, we also mastered the art of
animal husbandry, making cattle herding and livestock a mainstay of
Hopi culture and development.
We continue to maintain many of the practices of our ancestors--
speaking our ancient Hopi language, practicing our ancient religions,
upholding ancient forms of village governance, and farming the fields
around our villages. In particular, agriculture is still inextricably
tied to our identity and culture as Hopi people. Our religious cycles
are structured around agriculture, with ceremonies marking the cycles
of the harvest season. Seeds are blessed with water and prayer for them
to grow strong. To live as a farmer is part of the Hopi covenant. The
Original Caretaker presented the ancient Hopi with three gifts that
symbolized their life principles: corn seeds, a gourd filled with
water, and a planting stick. Corn was to be the soul of the Hopi
people. The planting stick provided a simple and dependable farming
tool. The water gourd represented the Original Caretaker's blessings
and the relationship with the natural environment.
Water has particular religious significance to my people, beyond
agriculture. We pray for rain and snow and hold religious ceremonies at
springs. During the trial to quantity the Hopi Tribe's water rights, a
Hopi witness, Mr. Leonard Selestewa, eloquently testified: ``Water to
the Hopi people is very sacred. Water is alive. It is a spirit with
life.''
Hopi Ancestral Lands. The Hopi Tribe's ancestral territory
(Hopitutskwa) far exceeds the lands recognized as the Hopi Reservation
today. Hopitutskwa encompasses the entire Little Colorado River
watershed from its confluence with the Rio Puerco River west to its
confluence with the Colorado River. My people and our ancestors have
used or occupied the Little Colorado River Basin in Arizona for many
centuries. Hopi have inhabited the area between Navajo Mountain in the
north to the Little Colorado River in the south and between the San
Francisco Mountains and the Luckchukas since before A.D. 1300. See Hopi
Tribe v. United States, 23 Ind. Cl. Comm'n. 277, 292-93 (1973).
The Hopi Reservation. The Hopi Reservation covers approximately
3,000 square miles (roughly 1.66 million acres) in northeastern Arizona
and is bordered on all sides by the Navajo Reservation. It is comprised
of two non-contiguous geographic areas known as the 1882 Executive
Order Reservation \1\ (``1882 Reservation'') and Moenkopi.\2\ Unlike
many Indian reservations, the Hopi Reservation is comprised entirely of
trust lands held by the United States on behalf of the Hopi Tribe.
There are no inholdings of fee land owned by non-members because the
1882 Reservation was never allotted. Within the exterior boundaries of
the Hopi Reservation, in the lands around the Village of Moenkopi, are
11 (11) allotments, which have never left trust ownership. The Hopi
Tribe has acquired a beneficial interest in most of the allotments as
individual Hopi allottees' interests have fractionalized over time. See
25 U.S.C. Sec. 2206, 25 U.S.C. Sec. 373a.
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\1\ The Executive Order of December 16, 1882, set aside a
reservation of some 2.5 million acres for use by the Hopi Indians ``and
such other Indians as the Secretary [of the Interior] may see fit to
settle thereon.'' See also Sekaquaptewa v. MacDonald, Case No. CIV-579-
PCT-JAW (D. Ariz.), aff'd, 626 F.2d 113 (9th Cir. 1980). Litigation
followed to resolve conflicting land claims by the Hopi Tribe and
Navajo Nation to portions of the 1882 Reservation. See Healing II, 210
F. Supp. at 134. The Hopi Tribe was granted exclusive title to ``Land
Management District 6,'' (District 6) and the balance of the 1882
Reservation was found to be a ``Joint Use Area'' in which the Hopi
Tribe and the Navajo Nation shared the surface and subsurface rights.
Id. The Joint Use Area was later formally partitioned into the ``Hopi
Partitioned Lands'' and ``Navajo Partitioned Lands'' in accordance with
the Act of December 22, 1974 (Public Law 93-531; 88 Stat. 1712;
codified as amended at 25 U.S.C. Sec. Sec. 640d-640d-24).
\2\ By the Act of June 14, 1934 (48 Stat. 960; codified at 25
U.S.C. Sec. 640d-7), Congress set aside for the Navajo ``and such other
Indians as were already `located' thereon'' an additional area of land
outside the boundaries of the 1882 Reservation. Pursuant to that Act,
the Hopi Tribe brought an action in the federal district court to
establish the Hopi Tribe's right to the 1934 Reservation. The court
declared that portions of the 1934 Reservation belong to the Hopi
Tribe, including the Villages of Upper Moenkopi and Lower Moencopi and
surrounding areas (collectively, ``Moenkopi''). See Masayesva v. Zah,
65 F.3d 1445 (9th Cir. 1995); see also Honyoama v. Shirley, Jr., Case
No. CIV 74-842-PHX-EHC (D. Ariz. 2006).
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There are no perennial streams located on the Hopi Reservation.
Before creating the 1882 Reservation, the United States was aware there
was no perennial water source on the Reservation and government
officials expressed concerns that the lack of perennial water sources
represented a major challenge to the Tribe's economic advancement.
Nevertheless, the Hopi Reservation lines were drawn, landlocked and
waterlocked, with Navajo lands on all sides.
The United States established the Hopi Reservation to protect Hopi
lands from incursions by our tribal neighbors and non-tribal settlors
so that Hopi could continue our agrarian lifestyle and support
ourselves rather than depend on the government for support. Because the
Hopi Reservation today is landlocked and isolated from water sources,
however, we are deprived of the fundamental prerequisites for modern
self-sufficiency: access to adequate and reliable sources of water.
This Settlement Act will remedy that.
Hopi Off-Reservation Lands. Under the Navajo-Hopi Land Dispute
Settlement Act of 1996 (Public Law 104-301; 110 Stat. 3649) (``1996
Settlement Act''), the Hopi Tribe acquired off-Reservation property to
settle claims stemming from the loss of Hopi Reservation lands due to
Navajo families settling on them. Lands acquired under the 1996
Settlement Act have express federal statutory water rights to both
surface water and groundwater. See id. Sec. 12.
The Hopi off-Reservation ranches include the 26 Bar Ranch, the
DoBell Ranch, the Aja Ranch, the Hart Ranch, the Clear Creek Ranch, and
the Drye Ranch. They are generally comprised of a mix of fee land, land
held in trust by the United States for the benefit of the Hopi Tribe,
and Arizona State trust land leased by the Hopi Tribe. The Hopi Tribe
also has separate fee lands (at and around the site of the ancestral
Hopi village of Homolovi) and trust lands (Twin Arrows and Hopi
Industrial Park).
II. Elements of the Settlement for the Hopi Tribe
Let me now summarize the principal elements of the comprehensive
water rights settlement ratified by H.R. 8940 specific to the Hopi
Tribe:
The Act ratifies the comprehensive settlement of all the
Hopi Tribe's federally reserved and other water right
claims, including the Tribe's right to water from the
Colorado River, for the Tribe's Reservation and off-
Reservation trust lands, and for the Tribe's fee lands.
The Act recognizes the Hopi Tribe's exclusive rights to
all groundwater on the Hopi Reservation, subject to an
agreement between the Hopi Tribe and the Navajo Nation that
limits:
+ the Hopi Tribe's pumping from the confined portion of
the N Aquifer to 5,600 acre-feet of water per year (``AFY'')
(2,000 AFY of which may be used for industrial purposes); and
+ the Navajo Nation's pumping from the confined portion of
the N Aquifer and the Shonto recharge area of the Little
Colorado River Basin to 8,400 AFY (2,000 AFY of which may be
used for industrial purposes).
The Act protects the Hopi Tribe's on-Reservation
groundwater by ratifying agreements between the Hopi Tribe
and the Navajo Nation concerning the N-Aquifer (including
the pumping limits described immediately above). The N
Aquifer is the primary source of groundwater for the Hopi
Reservation.
The Act recognizes the Hopi Tribe's exclusive rights to
all surface water on the Hopi Reservation, subject to an
agreement between the Hopi Tribe and the Navajo Nation as
to the five major washes (the ``Northern Washes'') shared
by the Tribes to: (1) grandfather existing water uses; (2)
limit new uses upstream of the southern boundary of the
Hopi Reservation; (3) provide for the rehabilitation of
historic irrigation uses; and (4) permit traditional
agriculture and wash restoration.
The Hopi Tribe receives an allocation of 2,300 AFY of
Arizona's Upper Basin Colorado River water entitlement,
some of the most reliable Colorado River water in the
system, which will provide a vital and reliable supplement
to the insufficient water resources on the Hopi
Reservation.
The Act affords the Hopi Tribe the option to use all or a
portion of 4,178 AFY of the Tribe's existing fourth
priority Lower Basin Colorado River water (along with the
Tribe's existing contract rights to 750 AFY of fifth
priority Lower Basin Colorado River water, and 1,000 AFY of
sixth priority Lower Basin Colorado River water) on the
Hopi Reservation.
With respect to the Hopi Tribe's Colorado River water
rights (in both the Upper and Lower Basins), the Act
authorizes leasing, exchanges, long-term storage credits
accrued as a result of storage, storage on the Hopi
Reservation for aquifer recovery, and inter-basin transfer
of Colorado River water rights in Arizona.
The Act ratifies agreements among the Hopi Tribe, the
Navajo Nation, and the San Juan Southern Paiute Tribe to
grant each other and the United States rights-of-way for
water projects without objection or cost to ensure the
efficient and cost-effective execution of the
infrastructure projects contemplated in the Act.
The Act authorizes and approves an agreement among the
United States, the Hopi Tribe, the Navajo Nation, the
Arizona State Land Department, and the Bar T Bar Ranch to
facilitate cooperative and sustainable use of shared water
resources, by (among other things):
+ setting certain limitations on the Hopi Tribe's pumping
on its off-Reservation trust lands within six miles south and
west of the Navajo Reservation;
+ limiting aggregate Hopi Tribe pumping to 6,570 AFY
within certain areas of the Hart Ranch proximate to the Navajo
Reservation; and
+ establishing a protective buffer zone around the Hopi
Tribe's Bluebird Well near the Twin Arrows and Interstate
Highway 40 interchange.
The Act authorizes and funds the iina ba-paa tuwaqat'si
pipeline,\3\ to transport Colorado River water from Lake
Powell to the reservations for municipal, domestic,
commercial, and industrial water uses:
---------------------------------------------------------------------------
\3\ iina ba are Navajo words that we understand to mean ``for
life.'' paa tuwaqat'si are Hopi words that translate as ``water is
life.''
---------------------------------------------------------------------------
+ to serve Hopi communities with up to 3,076 AFY;
+ to serve Navajo communities with up to 7,100 AFY; and
+ to serve the San Juan Southern Paiute Southern Area with
up to 350 AFY.
The Act authorizes and funds multiple trust funds for the
Hopi Tribe for essential water infrastructure on the Hopi
Reservation and other purposes:
+ $390 million to plan, design, construct, operate, and
maintain water supply infrastructure, including wells, water
treatment facilities, pipelines, storage tanks, pumping
stations, electrical transmission equipment, wastewater
treatment facilities, and renewable energy facilities to serve
Hopi Reservation communities. The groundwater projects
currently contemplated include:
* The Side Rock-Moenkopi Groundwater Project,
which is intended to provide potable water to
communities at Moenkopi and unserved locations on the
1882 Reservation; and
* The Expanded Hopi Arsenic Mitigation Project
(HAMP), which is intended to provide potable water to
communities at First Mesa, Second Mesa, Third Mesa and
Keams Canyon.
+ $87 million to support the operation, maintenance, and
replacement of the iina ba-paa tuwaqat'si pipeline and Hopi
groundwater projects.
+ $30 million to reduce water shortages on irrigated and
grazing land within the Hopi Reservation by funding the
implementation or repair of sprinklers, drip or other types of
irrigation systems, land leveling, stream bank stabilization
and restoration, pasture seeding, pasture management, fencing,
wind breaks, stockponds, windmills and wells, spring
restoration, repair, replacement, and relocation of low
technology structures to support akchin farming, flood-water
farming and other traditional farming practices, among other
actions; and
+ $1.5 million for the purchase of land and associated
Lower Basin Colorado River water rights within Arizona.
The Act's authorized and appropriated amounts for the iina
ba-paa tuwaqat'si pipeline and the Expanded HAMP are based
on updated estimates from the Bureau of Reclamation's
``Navajo-Hopi Value Planning Study--Arizona'' (October
2020, updated February 2024).
The groundwater projects will address immediate needs on
the Hopi Reservation, and later be operated in conjunction
with the iina ba-paa tuwaqat'si pipeline to satisfy the
water needs of the Hopi Reservation.
III. The Dire Need for Water and Water Infrastructure on the Hopi
Reservation
A. Inadequate Surface and Groundwater Resources
Surface Water. Surface water on the Hopi Reservation is
insufficient for a permanent homeland. The five Northern Washes are the
Reservation's only significant potential sources of surface water.
Perennial flow occurs in limited portions of three of the five washes,
but these flows are too small to provide a meaningful source of water
to meet future Hopi needs. The majority of the flow that occurs in the
washes, estimated to be between 29,941 AFY and 31,480 AFY, is from high
intensity, short duration monsoon storm flow events that are highly
variable and produce flows that have excessive amounts of sediment.
This excessive sedimentation inhibits storage and has historically been
a problem for reservoirs and canals in the region.
Further, the Northern Washes are listed as impaired under the Hopi
Tribe's Clean Water Action Plan Unified Watershed Assessment, due to
the high sediment load, chemical contamination, and presence of
coliform bacteria. As a result, surface water on the Hopi Reservation
would require considerable, likely cost-prohibitive, treatment to serve
as a source of drinking water.
As a result, alternative water resources, such as groundwater and
off-Reservation Colorado River water, are vital to ensuring the Hopi
Reservation is a permanent and sustainable homeland for the Hopi.
Groundwater. There are several groundwater aquifers beneath the
Hopi Reservation, including the alluvial aquifers, the Bidahochi (B)
Aquifer, the Toreva (T) Aquifer, the Dakota (D) Aquifer, the Navajo (N)
Aquifer, and the Coconino (C) Aquifer. Most of these aquifers cannot
provide adequate, reliable water. There is very limited potential for
the development of additional water supplies from the alluvium, and the
B, T, and D Aquifers. The alluvial, B and T Aquifers are limited in
extent and only produce small quantities of water to wells. The D
Aquifer also is known for wells with limited yield and the water would
need to be treated prior to use. The C Aquifer is present throughout
the Hopi Reservation, but occurs at great depth, making it difficult
and expensive to access. Moreover, water in the C Aquifer beneath the
Hopi Reservation has a high salt content, and C Aquifer water would
need to undergo expensive treatment in order to be used as a drinking
water source. The Hopi Tribe already attempted to use the C Aquifer at
one of its villages where the N Aquifer is depleted, and shut down the
project after several years because the water treatment costs were
prohibitive.
The N Aquifer has historically been the source of water for
industrial and municipal uses in the area. In Arizona, the N Aquifer
occurs only beneath portions of the Hopi and Navajo Reservations. The N
Aquifer is named for the Navajo Sandstone, and known to Hopi as Pukya.
The N Aquifer units beneath Black Mesa dip into a structural basin to
more than 1,500 feet below ground surface, and in these areas, where
the aquifer units are deeply buried beneath Black Mesa, the aquifer is
confined (the water occurs under pressure). The N Aquifer is confined
under the majority of the 1882 Reservation, including the Hopi Mesas.
It is unconfined under the southern and western portions of the 1882
Reservation and Moenkopi.
The N Aquifer is primarily recharged by rainfall or snowmelt. Most
of the groundwater stored in the N Aquifer was recharged during the
late Pleistocene period when the temperature was cooler and
precipitation was higher. N Aquifer groundwater is more than 30,000
years old in the vicinity of the Hopi villages on the 1882 Reservation.
The confined portion of the aquifer is recharged near the Shonto area
on the Navajo Reservation, and from there the groundwater moves to the
southeast, south and southwest beneath Black Mesa. A natural
groundwater divide existed under predevelopment conditions at about the
northeastern tip of the Hopi 1882 Reservation. North and east of the
divide, the groundwater flowed to the northeast on the Navajo
Reservation. South and west of the divide, groundwater flowed to the
southwest beneath the Hopi 1882 Reservation. In 1983, the U.S.
Geological Survey (USGS) estimated annual recharge near Shonto to be
4,830 acre-feet. More recently, the confined N Aquifer annual recharge
rate has been estimated between 2,500 and 3,500 acre-feet.
N Aquifer well yield on the 1882 Reservation in the vicinity of the
Hopi Mesas is about 100 gallons per minute (gpm). The N Aquifer is
thicker in the northern portion of the 1882 Reservation, where N
Aquifer well yield is about 350 gpm. In the far northeastern corner of
the 1882 Reservation, the well yield can reach about 500 gpm. N Aquifer
well yield in the unconfined portion of the aquifer under Moenkopi is
about 25-30 gpm. Significant quantities of groundwater (i.e., more than
about 40 gpm) cannot be obtained from N Aquifer wells anywhere on
Moenkopi. Although N Aquifer water quality is generally very good, it
exceeds the U.S. Environmental Protection Agency's Maximum Contaminant
Level for arsenic at First and Second Mesas.
For decades, the N Aquifer's ancient, pristine and irreplaceable
water was mined to slurry coal via a pipeline to the Mohave Generating
Station near Laughlin, Nevada. My people have always viewed, and
continue to view, the mining of this water as a desecration. Indeed,
serious questions about the circumstances and validity of Hopi
``consent'' to this arrangement have never been answered.
Due to concerns of the Hopi Tribe and Navajo Nation regarding the
long-term effects of withdrawals from the N Aquifer, the USGS
established a monitoring program for water resources in the Black Mesa
area in 1971. The program monitors N Aquifer water levels and water
quality, compiles information on water used by Peabody Western Coal
Company (PWCC) and tribal communities, maintains several stream-gaging
stations, measures discharge at selected springs, conducts studies, and
reports findings. The USGS has prepared progress reports on the
monitoring program since 1978.
According to published USGS monitoring reports, N Aquifer
groundwater withdrawals for mining and municipal uses began around
1965. Groundwater withdrawals from the N Aquifer reached a peak of
8,000 acre-feet in 2002. The average annual withdrawal between 1965 and
2016 was 5,063 acre-feet. This includes all withdrawals from the N
Aquifer by PWCC, the Hopi Tribe, and the Navajo Nation. No other entity
uses the N Aquifer.
PWCC has been the largest user of groundwater on Black Mesa since
the late 1960s. PWCC began pumping in 1968 and averaged about 4,000 AFY
from 1972 through 2005. From 2006 through 2021, PWCC pumping averaged
1,105 AFY. As a result of PWCC's reduced pumping beginning in 2006 due
to cessation of water mining for the coal slurry, some water levels in
the confined portion of the N Aquifer have started to recover. Annual N
Aquifer withdrawals by the Hopi Tribe between 2000 and 2016 averaged
498.2 acre-feet. Hopi Tribe N aquifer withdrawals were just under 440
acre-feet for 2020 and 2021. The maximum amount of water withdrawn in
the past from the N Aquifer by the Hopi Tribe was 562.1 acre-feet in
2007.
Groundwater pumping has caused N Aquifer water-level declines. From
the prestress period (before 1965) to 2021, the USGS reports that
groundwater levels declined in 18 of 25 wells with measured water
levels. Water levels in the unconfined area had a median change of -0.4
feet, with 7 opf the 13 wells monitored indicating a water-level
decline. Water levels in the confined area of the N Aquifer had a
median change of -25.9 feet, and the changes ranged from -133.7 feet to
+17.3 feet. Of the 12 wells monitored in 2021, 11 showed a water level
decline.
Water level declines in the N Aquifer have led to reduced flow at
springs and streams. The USGS reports downward trends in flow at
Moenkopi School Spring, Pasture Canyon springs, and Moenkopi Wash. Many
of these springs are vital to Hopi religious ceremonies and cultural
practices.
B. The Impacts of Aging and Inadequate Water Infrastructure
Current infrastructure on the Hopi Reservation is a patchwork of
aging and inadequate systems, which has long jeopardized the well-being
of our people and forced many to leave their ancestral lands. Without
adequate infrastructure, the Hopi Tribe lacks the foundation upon which
to build a well-functioning economy in the modern era.
Current Water Infrastructure. There are 16 public water systems on
the Hopi Reservation, all of which are supplied by groundwater, mostly
through wells. Most of the systems were constructed between the 1950s
and the 1990s with federal funds and assistance from the Indian Health
Service. The systems have expanded incrementally over time as the
village populations increased; as a result, much of the piping and
storage volumes are undersized and are incapable of providing typical
water demands and adequate fire protection. Our pipes are smaller than
what is ordinarily used in typical cities and towns and the distances
between fire hydrants within villages exceed that typically required by
national standards. Other deficiencies include water towers and storage
tanks in need of maintenance and pump houses and controls in need of
refurbishment and replacement. Some supply wells are over fifty years
old and approaching the end of their useful life, and some exceed EPA
drinking water standards for arsenic.
In 2005-2006, Dr. W. Michael Hanemann and Dr. Dale Whittington,
both economists with expertise in water resource management in
developing countries, conducted a household survey of 737 households in
the 12 main Hopi villages on the Hopi Reservation to determine detailed
household water use behavior. According to the survey, 18% of the
people who lived in homes in villages were not connected to a public
water supply. Of those people, 84% accessed water through public taps
or neighbors with connections to the public system with the remaining
16% obtaining water from windmills and springs.
Today, the enrolled membership of the Hopi Tribe stands at 14,768,
approximately 9,000 of whom are residents of the Hopi Reservation. The
Hopi Tribe estimates that at least 2,700 enrolled members on the
Reservation live without running water. My family and I live in one of
the oldest continuously inhabited communities in the United States, the
Village of Mishongnovi. Our home does not have running water. These
circumstances are inexcusable in the United States of America.
Socio-Economic Conditions. Lack of reliable water resources and
water infrastructure on the Hopi Reservation has been detrimental to
the health, safety, and prosperity of all residents of the Hopi
Reservation. It has artificially restrained economic development and
population growth. The Hopi Tribe has consequently suffered poor socio-
economic conditions, resulting in extremely low household incomes and
increased reliance on public assistance. These challenges are
compounded by the lack of housing and basic modern amenities like
running water.
The socio-economic conditions on the Hopi Reservation reflect the
need for economic development to improve the lives of the Hopi people.
The Hopi Tribal Council, as a sovereign government, is keenly aware of
these socio-economic indicators as it leads efforts to develop economic
strategies on the Reservation and drive initiatives to promote federal
policies of tribal self-determination and economic self-sufficiency.
The Tribe has worked tirelessly to generate economic development while
continuing to protect its lands and cultural resources. The Hopi Tribe
continues to explore and secure funding for economic development
projects to capitalize on its natural resources, including exploration
of coal gasification, solar/wind generation, and other alternative
energy strategies. In addition to these energy development projects,
future potential business ventures on Hopi lands include RV parks,
hotel/motels, restaurants, campgrounds, convenience stores with
gasoline stations, small tourism galleries or museums, billboards, and
small travel centers and shopping centers. The Tribe and its affiliates
also continue to be leaders in the cattle industry. Ranching is an
integral part of Hopi life, and it is the most extensive land use
activity on the Hopi Reservation today.
However, without reliable water and the infrastructure to deliver
the water to where it is needed, the Hopi Tribe's strategies and
efforts to improve economic conditions on the Reservation are doomed to
failure. The Settlement Act is the first and most important step toward
solving these problems.
Population. Hopi is one of the few tribes whose reservation is
located on a portion of its ancestral homeland. A pillar of Hopi
community is the call to return home that is inherent in all of us.
However, the socio-economic conditions described above, in addition to
historic federal assimilation policies, have forced many Hopi people to
leave the Reservation. This, among other factors such as scattered
housing and language barriers, makes it difficult to get a true count
of the Hopi population.
Experts estimate the Hopi population in its ancestral territory
exceeded 29,000 in the early 16th century but dropped dramatically to
between 8,000 and 10,000 due to smallpox and other disease epidemics
brought by the Spanish after their arrival in 1540.
During the Hopi Tribe's water adjudication, the Hopi Tribe retained
expert witness, Dr. David Swanson, a renowned a demographer who holds a
doctorate in sociology/population studies.\4\ Using a complex
autoregressive integrated moving average (ARIMA) method, Dr. Swanson
forecasted that by 2100 the total population on the Hopi Reservation
would be 20,142 (19,084 tribal members and 1,058 non-Hopi) and the
total off-Reservation Hopi member population would be 23,338.
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\4\ Curriculum Vitae available at https://profiles.ucr.edu/api/
CvAttachment/7034812.
---------------------------------------------------------------------------
However, Dr. Swanson explained the limitations of the ARIMA
method--namely that it relies on historical data to forecast the future
and therefore assumes the same policies, economic conditions, and other
factors that were in effect during the period of the beginning
population data will continue unchanged into the future. Past federal
laws and policies, such as the Indian Relocation Act of 1956 (Public
Law 959; 70 Stat. 986), encouraged--if not outright forced--Native
Americans to leave their reservations and traditional homelands and
assimilate into the general population. See Cohen's Handbook of Federal
Indian Law Sec. 1.04; see also, e.g., Lorie M. Graham, ``The Past Never
Vanishes'': A Contextual Critique of the Existing Indian Family
Doctrine, 23 Am. Indian L. Rev. 1, 15 (1998); Ryan Seelau, Regaining
Control over the Children: Reversing the Legacy of Assimilative
Policies in Education, Child Welfare, and Juvenile Justice That
Targeted Native American Youth, 37 Am. Indian L. Rev. 63, 84 (2013).
Less overt federal policies also affected migration. The child welfare
system had a rippling effect on the separation of Native families.
Graham, at 23-25, 53-54. Criminal legislation swept Native offenders
into the federal criminal justice system, incarcerating and relocating
Native people to off-reservation prisons and treatment facilities.
Seelau, at 92-95. Many Native American men enrolled in the military
during WWI and WWII and were often relocated off-reservation when they
returned home from war through the federal government's relocation
policies.
These historic federal policies have had lasting effects on
reservation populations, even though federal policy has shifted away
from assimilation, relocation, and termination and toward tribal self-
sufficiency and sovereignty. E.g., the Indian Civil Rights Act of 1968,
(Public Law 90-284; 25 U.S.C. Sec. Sec. 1301 et seq.); the Indian
Education Act of 1972 (Public Law 92-318); the Indian Self-
Determination and Education Assistance Act of 1975 (Public Law 93-638);
the Tribally Controlled Schools Act of 1988 (Public Law 100-297); the
Indian Education Act of 1988 (Public Law 100-427).
The Hopi population has been deeply affected by these policies.
Although Hopi resisted efforts to send our children to off-Reservation
boarding schools at the turn of the 20th century, many Hopi children
attended boarding schools and other off-Reservation schools through
1985 when the first high school opened on the Hopi Reservation. Many
Hopis enroll in the military. Many have left in search of economic
opportunities. Dr. Swanson's ARIMA method could not account for how
policy changes will impact future demographic patterns.
The United States' population expert during the Hopi Tribe's water
adjudication was Dr. Gretchen Greene, a PhD economist with an expertise
in economic development on Indian reservations. Using a Cohort
Component Method (CCM), Dr. Greene forecasted that by 2110 the total
population on the Hopi Reservation would be 49,301 and would reach a
stable population at 52,016 sometime thereafter. Unlike Dr. Swanson's
ARIMA projection, Dr. Greene's CCM allowed her to model the
``components of change'' in a population (i.e., births, deaths, and
migration) rather than rely only on historical population or enrollment
data.
Based on all of the best available data and projection methods
provided by the United States and Hopi Tribe experts, the Hopi Tribe
predicts a future on-Reservation population of 52,016. The Hopi
Reservation cannot serve as a permanent homeland for the Hopi people
without sufficient reliable water to meet the needs of the entire
population, and infrastructure to get that water to where it is needed.
IV. Conclusion
In the closing lines of the Arizona Supreme Court's seminal opinion
on the water adjudications in Arizona, the Court expressed its sincere
``hope that interested parties will work together in a spirit of
cooperation, not antagonism'' in resolving Native American tribes'
claims to federal reserved water rights for their reservations. In re
Gen. Adjudication of All Rights to Use Water in Gila River Sys. &
Source (``Gila V''), 35 P.3d 68, 81 (Ariz. 2001). The Court aptly
observed that ``the welfare and progress of our indigenous population
is inextricably tied to and inseparable from the welfare and progress
of the entire state.'' Id. Twenty years later, the Hopi Tribe seeks
nothing more than a fair allocation of water and adequate
infrastructure to make the Hopi Reservation an abiding and livable
homeland for present and future generations of Hopi. Despite the
practical difficulties of surviving in such an arid, and often hostile,
environment, the Hopi Tribe has a well-documented history of thriving
in northeastern Arizona for a thousand years.
In a spirit of cooperation, the Northeastern Arizona Indian Water
Settlement identifies the water quantities, water resources, and
critical infrastructure needed to deliver safe, reliable water that
will allow the Hopi Tribe to prosper and continue to preserve its
history, culture, and religious traditions on its aboriginal homeland
for another thousand years.
______
Mr. Bentz. Thank you. I now recognize Chairwoman Lewis for
5 minutes.
STATEMENT OF THE HON. TANYA LEWIS, CHAIRWOMAN, YAVAPAI-APACHE
NATION, UPPER VERDE VALLEY, ARIZONA
Ms. Lewis. [Speaking Native language.] I am Tanya Lewis. I
am the Chairwoman for the Yavapai-Apache Nation. Thank you,
Chairman Bentz and the Subcommittee, for this opportunity today
with you.
Thank you to Congressman Schweikert, Congressman Gallego,
Congressman Ciscomani, Congressman Stanton, and Congresswoman
Lesko for introducing and co-sponsoring H.R. 8949.
Thank you to our representative, Congressman Eli Crane, for
his steadfast support of the Nation and the communities of
Arizona's 2nd District. His service to his constituents is a
continuation of his service to our Nation, and for that we are
grateful.
As I speak to you today, I am standing on the shoulders of
my ancestors in the Verde River, which is a living being and
the center of our cultural and religious way of life.
The passage of H.R. 8949 is essential for our Nation to
finally attain a secure water future and permanent tribal
homeland for the Yavapai and Dilzhe'e people. This legislation
also brings water certainty to our neighboring communities by
ending years of uncertainty of our water rights. In this time
of persistent drought, we must take concrete and generational
actions to secure the long term of our communities.
Our counterparts in metro Phoenix have a secure water
supply due to historic investments by the Federal Government in
reclamation projects on the Verde and Salt Rivers and
elsewhere. It is critical that my Nation also has a secure
water supply and access to modern water infrastructure.
We have lived in the Verde Valley since the beginning of
time. Because of our relationship to the Verde River, it is
time for us to finally have access to water guaranteed in the
Apache Treaty and in other agreements with the United States.
It is time to protect the Verde River, which is one of
Arizona's last free-flowing rivers, so it can continue to flow
for future generations.
To understand the importance of our historic settlement,
you must also understand our Nation's history and long-standing
relationship my people have to the Verde River and the Verde
Valley. Our aboriginal homelands span more than 16,000 square
miles across central Arizona and extend into what is now
California. When gold was discovered in the territory, there
was a rush of people claiming our land, using our water, and
killing the game our people relied on. The armed conflict
between our people and the settlers became part of a much
larger conflict referred to as the Apache Wars.
Intent on bringing an end to the conflict, President Grant
established the 900-square-mile Camp Verde Indian Reservation
in 1871. The reservation was to be our new permanent homeland,
where we were told we would remain undisturbed by non-Indian
settlers. We became productive and profitable farmers. In fact,
an irrigation ditch we had dug in 1874 is still in operation
today, the Cottonwood Ditch.
Unfortunately, our prosperity would not continue, due to
pressure to open our reservation to settlement. On February 27,
1875, 1,476 of our people, young and old, pregnant and infirm,
were force-marched by the United States military 180 miles over
the mountains in the dead of winter, where we would be
imprisoned for a generation on the San Carlos Apache
Reservation. When efforts were made to persuade the Federal
Government in charge of our removal to go around the mountains
by means of wagons and horses, he responded by saying, ``They
are Indians. Let the beggars walk.'' More than 100 of our
people died on the way to San Carlos.
Shortly afterward, bowing to local pressure, on April 23,
1875, President Grant terminated our 1871 reservation, which
allowed non-Indians to build their lives and communities using
the abundant water, land, and other resources that were
guaranteed to my people. By 1890, with the end of the Apache
Wars, we began to return home to the Verde Valley, mostly on
foot. However, my people returned to a non-established
reservation or land base of any kind.
With the assistance of the Indian agent, we were able to
purchase back just a little over 18 acres in 1909. Since then,
we have been able to restore additional lands to our
reservation. Because of our forced removal and termination of
our 1871 reservation, we don't have a large or even unified
reservation today. Our reservation is just a small fraction of
what we had. Because of this, our tribal members live
throughout the Verde Valley, throughout the states, and across
the world because we are unable to provide.
In order for the Nation to thrive, to meet the needs of our
people, we have to have the water for current and future needs.
The legislation will secure the water and land the Nation needs
to enjoy the prosperity the 1852 Treaty guaranteed us and the
United States' trust responsibility requires.
On behalf of the Yavapai-Apache Nation and the tribal
leaders that have come before me, thank you for the opportunity
to testify. [Speaking Native language.]
[The prepared statement of Ms. Lewis follows:]
Prepared Statement of Tanya Lewis, Chairwoman, Yavapai-Apache Nation
on H.R. 8949
Good afternoon, my name is Tanya Lewis, I am the Chairwoman of the
Yavapai-Apache Nation. I want to thank the Subcommittee for the
opportunity to testify and thank my fellow Tribal leaders who are here
today and wish them well as they work to resolve their critical water
issues. The Yavapai-Apache Nation strongly supports H.R. 8949, the
Yavapai-Apache Nation Water Rights Settlement Act of 2024 (Settlement)
and the Tu nliinichoh Water Infrastructure Project that will be
developed as part of this Settlement.
Our Reservation, known as the ``Yavapai-Apache Reservation''
(Reservation), is located in central Arizona's Verde Valley. Because of
the failed Indian policies of the United States during the mid to late
1800's and other historic disparities, our Reservation lands are non-
contiguous and comprised of five different ``Districts'' (the Middle
Verde District, the Camp Verde District, the Clarkdale District, the
Rimrock District, and the Montezuma District).
The Verde River, which is one of the last remaining perennial
rivers in Arizona, runs through the heart of the Middle Verde and Camp
Verde Districts of our Reservation. The Settlement has taken many years
to accomplish, and each generation of leadership for the Yavapai-Apache
Nation (Nation) has played a role in the Nation finally reaching a
comprehensive settlement to confirm our water rights and help protect
the health and vitality of the Verde River.
To the Yavepe (Yavapai) the Verde River is known as Hatayakehela
(``big river''), and to the Dilzhe'e (Apache--being one of the numerous
subgroups or bands comprising the ``Western Apache'') the Verde River
is known as Tu nliinichoh (``big water flowing''). The Verde River and
its sources are within the aboriginal homeland of the Yavepe and
Dilzhe'e people, which, as discussed in greater detail below, spans
more than 16,000 square miles across what is now central and western
Arizona.
The Verde River and its associated groundwater resources are the
primary sources of water used by the Nation for all municipal,
commercial, industrial, agricultural, and recreational uses. We also
have significant cultural and religious interests in the Verde River
Watershed and in the many springs and other water sources that supply
the Verde River and its tributaries. These water sources support the
Bald Eagle and other wildlife that are important to the culture and
lifeways of the Nation. The Verde River's water sources, and the trees
and plants that are nurtured by the river, all play an essential role
in the cultural and religious practices of the Yavapai and Apache
People--practices that help preserve the identity and health of the
Nation to this day.
It is also important to note that the Verde River and its perennial
tributaries, like Oak Creek, Wet Beaver Creek, and West Clear Creek,
provide diverse public recreational opportunities, including boating,
kayaking, hunting, fishing, birding, hiking, picnicking, and
photography. Because of this, the Verde River is a major economic
driver for the rural communities located throughout the watershed,
including the Yavapai-Apache Nation and our neighboring communities in
the Verde Valley. In short, the continued reliable flow and health of
the Verde River and its tributaries (and the groundwater sources that
sustain these systems) are crucial to the Nation's present and future
livelihood in its permanent Tribal homeland under Winters v. United
States, 207 U.S. 564, 565, 28 S. Ct. 207, 208 (1908).
The Nation's Settlement Agreement will finally and fully resolve a
host of critical water issues for the Nation by, among other things,
providing water certainty for the Nation and our neighbors in the
watershed and avoid further costly litigation in Arizona's Gila River
Adjudication Proceedings over the Nation's water rights and those of
the United States on our behalf. It will also support the capture,
treatment, and reuse of effluent for use on the Nation's farming
operation in lieu of groundwater pumping and provide for the
importation of a renewable water supply from the C.C. Cragin Dam and
Reservoir that will further limit groundwater pumping that threatens
the longevity of local aquifers and flows in the Verde River.
To understand the importance of the Settlement, it is important to
understand the Nation's history and the longstanding relationship that
the Yavepe and Dilzhe'e people have to the Verde River and the Verde
Valley. I will briefly review our history next in my testimony. After
this, I will provide a summary of the Settlement Agreement and the H.R.
8949.
HISTORY OF THE YAVAPAI-APACHE NATION
The Yavapai-Apache Nation of the Camp Verde Indian Reservation is a
federally recognized Indian Tribe pursuant to the Apache Treaty of
1852, 10 Stat. 979 and Section 16 of the Indian Reorganization Act of
1934, P.L. 73-383, 48 Stat. 984 et seq. Our first constitution was
approved in 1937 and was most recently amended in April 1992. The
Nation is comprised of two distinct cultures, the Yavepe people and the
Dilzhe'e people.
Our aboriginal homeland spans more than 16,000 square miles across
central Arizona. A map of our territory is attached to this testimony,
and we ask that it be included in the record. Following the 1848 Treaty
of Guadalupe Hidalgo, in which Mexico ceded the lands that comprise
most of the Southwestern United States, our territory became part of
the United States. Notwithstanding this, our lifeways and culture were
left largely unaffected by the westward expansion of the United States
until 1863, when gold was discovered in our homeland. This discovery
led to a rush of people claiming our land, using our water, and killing
the game our people needed to survive. The armed conflict between our
people and the occupiers became part of a much larger conflict referred
to by historians as the ``Apache Wars'' which lasted until 1890.
Intent on bringing an end to the conflict, the United States
established a series of military camps across Arizona as well as
reservations where a federal policy of concentrating and confining our
people within a defined territory was imposed. President Grant
established the Camp Verde Indian Reservation in 1871 along with the
army fort known as Camp Verde. Our people were told that our homeland
would now be reduced to the boundaries of the new reservation. Because
the Verde River has always been necessary to sustain our people, the
1871 Camp Verde Reservation was purposefully located along the Verde
River. The Camp Verde Reservation boundaries were established to
encompass forty-five miles up and down the Verde River and ten miles on
each side of the Verde River, totaling 900 square miles. This left our
people with 6% of what had been our aboriginal territory since the
beginning of time. Yet, this 900 square mile Reservation was to be our
new permanent homeland, where, we were told, we would remain
undisturbed by non-Indian settlers. On this supposed ``permanent''
homeland, we took advantage of its proximity to the Verde River to
become productive and profitable farmers. In fact, an irrigation ditch
we hand dug in 1874 is still in operation today as the Cottonwood
Ditch.
Unfortunately, as was all too often the case throughout Indian
Country in 19th century America, our Nation's prosperity would not be
allowed to continue. Due to pressure to open the Camp Verde Reservation
to settlement by non-Indian farmers, ranchers, and miners, and from
profiteers who wanted to quash the competition from our farms and
ranches, the United States was urged to open up our remaining lands to
non-Indian settlement by removing our people from the Camp Verde
Reservation to what amounted to a life of imprisonment on the San
Carlos Apache Reservation--approximately 180 miles away in southeastern
Arizona.
Beginning on February 27, 1875, without consent or consideration,
1,476 of our people, young and old, pregnant, and infirm, were force
marched by federal troops as prisoners of war 180 miles over the
Mazatzal Mountains, including several stream crossings at high water in
the dead of winter. When efforts were made to try and persuade the
Special Commissioner of Indian Affairs in charge of our removal to take
a less treacherous route around the mountains by means of wagons and
horses, he responded by saying ``They are Indians, let the beggars
walk.'' Corbusier, William T, Verde to San Carlos, p. 267 (1971). More
than 100 of our people died enroute to San Carlos due to exposure,
trauma, childbirth, and drowning. Today, we solemnly commemorate this
date every year as Exodus Day, in honor of our ancestors and as a
reminder of the suffering they endured on that two-month march. On
April 23, 1875, President Grant terminated the Camp Verde Reservation
and returned it to the public domain. This allowed non-Indians to build
their lives and communities using the land, water, and other resources
that were once guaranteed to my people by the United States.
After the surrender of Geronimo's band of Chiricahua Apache in
1886, the Army began issuing permits allowing our people to work off
the San Carlos Reservation and gather traditional foods in our original
territory. By 1890, the Army stopped issuing permits and my people
simply started to migrate back to our original homelands. Once given
this opportunity, the Yavepe and Dilzhe'e returned home to the Verde
Valley on foot. In many cases it took years to make their way home.
Along the way, many of my ancestors worked on the Federal dams, like
Roosevelt Dam, which were constructed on the Verde and Salt Rivers to
supply water to what is now metropolitan Phoenix. These dams are owned
by the United States and operated today by the Salt River Project, a
settling party in our Settlement.
Once we returned home, we worked as cowboys, construction workers,
day laborers, and domestic workers. Our people returned to no
established reservation or land base of any kind. All of our lands had
been taken as a result of our 1871 forced removal to San Carlos by the
United States. But our ancestors still found a way to survive in the
communities that had sprung up in the Verde Valley on our former
Reservation. With the assistance and advocacy of our Indian Agent, Dr.
Taylor Gabbard, we were eventually able in 1909 to secure
appropriations from Congress and purchase back 18.25 acres of land
along the Verde River.
Since that time we have been able to restore additional lands to
our Reservation and today, our Reservation totals 1,810 acres-just 0.3%
of our former 1871 Camp Verde Reservation and 0.0017% of our original
territory. Because of the United States' forced removal of our people
from the Verde Valley and the termination of the 1871 Camp Verde
Reservation, we do not have the benefit of living on a unified and
large reservation. Instead, our Tribal members live throughout the
Verde Valley, both on and off our current Reservation lands. And
despite all the hardship and adversity, today, the Yavapai-Apache
Nation is one of the largest employers in the Verde Valley and we are a
young and growing population.
We who today put forward this Settlement Agreement for approval by
the United States stand on the shoulders of our forebears who endured
so much just so that we could return to the homeland on which our
Creator placed us. More than 36 percent of the Nation's Tribal members
are under the age of 18 and our waiting list for Tribal housing, now at
more than 150 families, only continues to grow. As a result, it is
critical that the Nation secure the necessary land and water resources
we need to continue our cultural and religious practices and provide
the jobs, housing, social services, and sustainable local economy that
are necessary attributes of a permanent tribal homeland.
This is why this settlement is so vitally important to the Nation.
It will secure a renewable imported supply of water for our Nation,
which is necessary for our families and our businesses to thrive. With
this renewable water supply, we can limit future groundwater pumping
that depletes flows in the Verde River and we can produce new sources
of reclaimed water to use in our farming operations to offset current
pumping. Finally, the Settlement will ensure that lands we now own in
fee surrounding our Reservation will be taken into trust and made a
permanent part of our Reservation homeland.
For our Nation to thrive, we need our people to live in our
homelands, and for that to happen, we need to have the water to meet
their current and future needs. In short, this Settlement Agreement and
the legislation confirming it will finally secure for our people the
permanent home and prosperity that the 1852 Apache Treaty is supposed
to have guaranteed to us.
HISTORY OF SETTLEMENT NEGOTIATIONS
The journey to reach today has been long and arduous for our
Nation. I want to acknowledge all of the Nation's leaders, many of whom
have now passed on, who worked so hard and with such unwavering
commitment over the years on this Settlement, so that I could be here
testifying before you today. Over forty years ago, the Nation, and the
United States on the Nation's behalf, filed claims for federal reserved
and other water rights under the Winters Doctrine to the Verde River
and its systems and sources in Arizona's General Stream Adjudication,
known as the ``Gila River Adjudication.'' Since this time, the Nation
has been an active litigant in the Gila River Adjudication, though the
Adjudication has yet to quantify our water rights. While the Gila River
Adjudication has dragged on, upstream development and water diversions
have continued to deplete the water sources that support the Verde
River, threatening the Nation's water rights and the natural and
cultural resources the Nation relies upon in the Verde River. As a
result, the Nation has made securing our water rights and protecting
flows in the Verde River with the cooperation of our neighboring
communities a top priority.
In 2008, the Secretary of the Interior's Indian Water Rights Office
(SIWRO) appointed a Water Rights Assessment Team to the Nation. In
2011, the SIWRO appointed a Federal Indian Water Rights Negotiation
Team. Since this time, we have been engaged in water negotiations with
the federal government, our local communities, the Salt River Project,
Central Arizona Project, the State of Arizona, and other key
stakeholders.
In July 2023, after several years of intense analysis conducted
with the assistance of the Bureau of Reclamation's Value Engineering
Study Team, the Nation and our settling partners agreed that the best
way to secure a renewable water supply for the current and future needs
of our people and to protect the Verde River was to develop a water
delivery project that will import a renewable water supply from outside
the watershed. As developed by the Bureau of Reclamation, this project
would deliver surface water from the existing C.C. Cragin Dam and
Reservoir that is owned by the Bureau of Reclamation and operated by
Salt River Project to the Yavapai-Apache Reservation.
To this end, the Nation, our Federal Team, the State of Arizona,
Salt River Project, Central Arizona Project, and our neighboring
communities (the city of Cottonwood, Town of Clarkdale, and Town of
Camp Verde) have worked tirelessly to finalize the Settlement
Agreement. This work culminated in the Nation's Tribal Council formally
approving the Yavapai-Apache Nation Water Rights Settlement Agreement
on June 26, 2024. The formal approval processes for each of the State
parties are underway, with final approval expected by late summer. We
would like to enter into the record the letter from the parties'
attorneys expressing support for the Settlement Agreement and their
commitment to recommend formal approval of the Settlement to their
respective clients. We also would like to the thank the State of
Arizona and the Salt River Project SRP for their written testimony in
support of this legislation.
ELEMENTS OF THE SETTLEMENT
Let me now summarize the principal elements of the comprehensive
water rights Settlement Agreement ratified by H.R. 8949.
The Settlement Agreement is a comprehensive settlement of
all of the outstanding claims for water rights for the
Yavapai-Apache Nation and the United States on our behalf.
Importantly, as part of the Settlement Agreement and the
legislation, the Nation will waive its outstanding claims
for water rights and damages associated with water rights
in the Gila River Adjudication against the United States
and all State parties, bringing finality and certainty to
all the water users in the Verde Valley Watershed.
Under the Settlement Agreement, the three Verde Valley
communities located on the Verde River (the city of
Cottonwood, the Town of Camp Verde, and the Town of
Clarkdale) have agreed to limit their groundwater pumping
and to no longer develop wells in close proximity to the
Verde River, thereby protecting the Verde River from
depletions caused by these wells.
Under the Settlement Agreement, the Nation will have
confirmed and decreed water rights to:
+ The delivery of 3,410 AFY of surface water from the C.C.
Cragin Dam and Reservoir through the Cragin-Verde Pipeline;
+ The delivery, by exchange, of the Nation's 1,200 AFA of
high priority Central Arizona Project or ``CAP'' water from the
C.C. Cragin Dam and Reservoir through the Cragin-Verde
Pipeline;
+ The diversion of 1,593 AFY of historic Verde River water
rights for irrigation uses by the Nation on its farm;
+ The diversion of 684 AFY of groundwater to meet certain
existing water needs on the Reservation and rights to
additional pumping (away from the Verde River) if needed as a
``back up'' supply in years when C.C. Cragin Reservoir water is
not fully available; and
+ The right to capture, treat, and reuse all effluent
produced by the Nation, which will be treated in a new modern
wastewater reclamation facility and integrated into the
Nation's farming operation to further reduce diversions from
the Verde River.
H.R. 8949 would authorize and fund construction of the
Cragin-Verde Pipeline and other infrastructure to deliver
surface water from the C.C. Cragin Reservoir Dam and
Reservoir located on the Mogollon Rim, to the Yavapai-
Apache Nation for treatment in a modern surface water
drinking plant and distribution throughout the Reservation.
The project is called the ``Tu nliinichoh Water
Infrastructure Project.''
The Settlement Agreement and H.R. 8949 provides a pathway
for local Verde Valley communities to also secure a
renewable water supply for their citizens, including for
many of our Tribal members who live in these communities.
This will be accomplished by allowing the Tu nliinichoh
Water Infrastructure Project to be sized to include
delivery of C.C. Cragin water to these local communities.
This is a critical component of the legislation, as this
would offset current and future groundwater pumping in the
Verde Valley by these communities. By reducing groundwater
pumping, the Nation's instream flow right in the Verde
River, which is a trust resource under the Settlement
Agreement and the Act, will be protected. Moreover, because
several of these local communities also provide drinking
water to our Reservation lands (at the Camp Verde, Middle
Verde, and Clarkdale Districts), providing these
communities with access to a renewable water supply from
the C.C. Cragin Dam and Reservoir under the Settlement will
help secure a renewable water supply for the Nation.
As part of the Settlement Agreement and with the funds
received under H.R. 8949, the Nation will replace its long-
outdated wastewater treatment system of facultative sewer
lagoons with a modern reclamation facility that will allow
the Nation to reclaim its wastewater for use in its farming
operation. This reclaimed water will allow the Nation to
offset current groundwater pumping from wells near the
Verde River and to support future irrigation with renewable
water supplies in lieu of new groundwater pumping.
H.R. 8949 would authorize a land exchange between the
Forest Service and the Nation. This land exchange is
currently underway between the Nation and the Forest
Service under the normal administrative process
administered by the Forest Service, and it is expected to
be completed in the fall of 2024. However, because the
exchanged lands are integral to the Settlement Agreement,
we have included authorization for the land exchange in
this legislation. If the Nation and Forest Service complete
the land exchange (as expected) this fall, as we expect to
do, we will not need Congress to authorize the exchange.
H.R. 8949 directs the Secretary of the Interior to take
certain lands into trust that the Nation now holds in fee,
including the land exchange lands. This land will be made
part of the Nation's Reservation.
Finally, the legislation directs the Forest Service to use
existing authorities to undertake a land transfer to the
Town of Camp Verde for public safety purposes--including
the development of public safety facility to meet the needs
of the Town, the Nation, and those traveling along
Interstate 17 in the Verde Valley.
CONCLUSION
The passage of H.R. 8949 to ratify the Yavapai-Apache Nation's
Water Rights Settlement Agreement is essential if our Nation is to
finally attain a secure water future and a permanent tribal homeland
for the Yavepe and Dilzhe'e people. In this time of persistent drought
and aridification in Arizona, we must take concrete and generational
action to secure the long-term needs of our communities. And, like our
counterparts in metropolitan Phoenix who have long had the benefit of a
diverse water supply due to historic investments by the United States
in federal reclamation projects like Bartlett Dam on the Verde River,
for the Nation to meet the future water needs of our people, we must
have access to renewable water resources and modern water
infrastructure.
The Yavepe and Dilzhe'e people have lived in the Verde Valley since
the beginning of time, and it is now time for the Nation, with the
assistance of our trustee the United States, to build the water
infrastructure needed to ensure that the Nation can continue to live
and thrive in the Verde Valley as was guaranteed to us in our Treaty
with the United States.
On behalf of the Yavapai-Apache Nation, thank you for the
opportunity to testify before you today. I will be pleased to answer
any questions you may have, and our Nation will help in any way it can
to secure enactment of this critical legislation.
*****
The following documents were submitted as a supplement to Ms.
Lewis' testimony.
[GRAPHIC] [TIFF OMITTED] T6360.027
__
June 26, 2024
Honorable Kyrsten Sinema Honorable Mark Kelly
Arizona Senator Arizona Senator
Honorable David Schweikert Honorable Eli Crane
Arizona District 1
Representative Arizona District 2 Representative
Honorable Ruben Gallego Honorable Greg Stanton
Arizona District 3
Representative Arizona District 4 Representative
Honorable Andy Biggs Honorable Juan Ciscomani
Arizona District 5
Representative Arizona District 6 Representative
Honorable Raul Grijalva Honorable Debbie Lesko
Arizona District 7
Representative Arizona District 8 Representative
Honorable Paul Gosar
Arizona District 9
Representative
Re: Support for the Yavapai-Apache Nation Water Rights Settlement
Agreement by the Settlement Parties
Dear Arizona Delegation:
We, the undersigned legal counsel and representatives of the
parties to the Yavapai-Apache Nation Water Rights Settlement Agreement,
have reviewed the attached Yavapai-Apache Nation Water Rights
Settlement Agreement and its accompanying exhibits, including the
proposed federal legislation, which was approved by the Tribal Council
of the Yavapai-Apache Nation by Resolution on June 26, 2024
(``Settlement Documents'').
Based upon our participation in the negotiations, the approval by
the Yavapai-Apache Nation of the Settlement Documents, as well as our
own review of the Settlement Documents, we express our support for the
Settlement Documents and it is the intention to submit the Settlement
Documents to our respective governing bodies for formal consideration,
subject to review and approval of the exhibits and any subsequent
changes to the Settlement Documents. Our governing bodies, however,
must still conduct a final review of the Settlement Documents and make
an independent decision.
Sincerely,
Settlement Parties:
Tanya Lewis, Chairperson R. Jeffrey Heilman
Yavapai-Apache Nation Arizona Dept. of Water Resources
Patrick Sigl Jay Johnson
Salt River Valley Water
Users Assoc. Central Arizona Water
Conservation District
Steve Wene Matthew Rojas
Town of Camp Verde Town of Clarkdale
David A. Brown
City of Cottonwood
______
Mr. Bentz. Thank you. I now recognize President Nygren for
5 minutes.
STATEMENT OF THE HON. BUU NYGREN, PRESIDENT, NAVAJO NATION,
WINDOW ROCK, ARIZONA
Dr. Nygren. [Speaking Native language.] Chairman Bentz,
Congresswoman Leger Fernandez, Congresswoman Stansbury, and
members of the Subcommittee, good afternoon. I am Dr. Buu
Nygren, Navajo Nation President. I am joined today by members
of the 25th Navajo Nation Council, their speaker, Crystalyne
Curley, Vice Chairman Craig Andrews of the Hopi Tribe, and
President Robbin Preston, Jr. of the San Juan Southern Paiute
Tribe. Thank you for the opportunity to testify in support of
H.R. 8940, H.R. 3977, H.R. 8945, and H.R. 6599.
Thank you to Representatives Ciscomani, Crane, Gallego,
Grijalva, Schweikert, and Stanton for sponsoring H.R. 8940.
Thank you also to Representative Leger Fernandez for
sponsoring H.R. 8945, H.R. 6599, and H.R. 3977 with
Representatives Stansbury and Curtis. Your leadership in
securing a safe and certain, stable water supply for the Nation
will be forever remembered for generations to come.
The Navajo Nation is the largest Indigenous tribe in the
country. We provide critical governmental services to over
400,000 tribal members, half of whom reside on the Navajo
Nation, on our sovereign territory, which is roughly the size
of West Virginia, which spans across Arizona, New Mexico, and
Utah. Roughly a third of all Navajo households lack running
water, including the home I grew up in.
Thousands of our people continue to haul water 30 miles
round trip to meet their daily water demands, and hauling water
is very expensive. The average cost is about $600 per month for
families, many of which live below the poverty line. Congress
must act to end the water crisis on the Navajo Nation. This
made the pandemic devastating to many people, and holds us back
from health and prosperity that Americans take for granted.
First, I will speak to H.R. 8940, which will ratify a
historic water rights settlement among the Navajo Nation and 38
other parties, including the Hopi Tribe, the San Juan Southern
Paiute Tribe, the United States, and the state of Arizona. It
will put to rest decades of expensive litigation and bring
certainty to users throughout the Colorado River basin. In
return for waivers of claims against the United States, this
settlement will resolve the water rights claims for three
Indigenous Nations. It will also invest desperately-needed
water infrastructure projects that will deliver safe and
reliable drinking water to these communities.
The bill will fund construction of a pipeline to divert
Colorado River water from LeChee to our communities and fund
other water delivery projects. The bill ratifies the treaty
between the San Juan Southern Paiute Tribe and the Navajo
Nation, creating the San Juan Southern Paiute Reservation. The
Paiute will finally join the 21 other tribes in Arizona and
have a sovereign territory of their own.
Now to H.R. 3977. In 2009, Congress approved the San Juan
settlement and authorized reclamation to construct the Navajo
Gallup Water Supply Project to convey water from the San Juan
River to a quarter of a million people in eastern Navajo,
Jicarilla Apache, and the city of Gallup, New Mexico. The
project is much higher than anticipated due to a 40-year high
of inflation. The bill makes several changes to ensure full
implementation of the 2009 settlement by increasing the
appropriation ceiling to complete the project, and extending
the completion deadline from 2024 to 2029. If not enacted, the
San Juan settlement and the completion of the project will be
threatened.
Third, H.R. 8945, which authorizes a settlement that
resolves the Nation's water rights claims in the Rio San Jose
Basin ending four decades of litigation and recognizes the
Nation's water rights to the Rio Puerco Basin, this bill is the
Navajo counterpart to the Acoma and Laguna settlement in H.R.
1304. Settlement funds will bring water to the Rio San Jose and
Rio Puerco Basins, some of the driest in New Mexico. This will
help all water users in these basins to manage depleted surface
and groundwater.
Fourth, H.R. 6599 provides an interest fix for several
water rights settlements, including the San Juan settlement. No
one in America should be denied access to water because of
where they live. These settlements will ensure a safe and
secure water supply, available and accessible to tens and
thousands of Navajo people now and for future generations. They
will provide certainty for our homeland's future and equal
opportunity for health and prosperity for the Navajo people.
I respectfully urge the Committee to swiftly pass the bills
to ensure water security in our region. [Speaking Native
language.]
[The prepared statement of Dr. Nygren follows:]
Prepared Statement of Dr. Buu Nygren, President of the Navajo Nation
on H.R. 3977, H.R. 6599, H.R. 8940, and H.R. 8945
H.R. 3977--Navajo-Gallup Water Supply Project Amendments Act of 2023
Ya'at'eeh, Chairman Bentz, Ranking Member Huffman and members of
the Subcommittee. My name is Buu Nygren and I am the President of the
Navajo Nation (``Nation''). Thank you for the opportunity to testify in
support of the Navajo-Gallup Water Supply Project Amendments Act of
2023, H.R. 3977. Thank you also to Representatives Leger Fernandez,
Stansbury and Curtis for sponsoring this legislation, which is critical
to ensuring implementation of the Navajo Nation San Juan River Basin
Water Rights Settlement in New Mexico (the ``San Juan Settlement'') and
the completion of the Navajo-Gallup Water Supply Project (the
``Project''). Their leadership will help secure a reliable water supply
for the Navajo Nation and other water users in the State of New Mexico.
The Navajo Nation and the San Juan Settlement
The Nation is the largest Native American tribe in the country. We
provide critical governmental services to more than 400,000 members,
almost half of whom reside on the Navajo Nation, which encompasses more
than 27,000 square miles and spans portions of 11 counties across the
states of Arizona, New Mexico, and Utah. Unfortunately, ensuring
adequate drinking water for our members continues to be a struggle with
approximately 30 percent of Navajo households lacking running water and
relying on hauling water to meet their daily needs.
To address this dire need, in 2005, the Nation entered into the San
Juan Settlement with the State of New Mexico. Specifically, in exchange
for water development projects, including the Project, the Nation
agreed, among other things, to quantify its water rights and release
claims to water in the San Juan River Basin in New Mexico. Ultimately,
the parties recognized that in the absence of a settlement, final
resolution of the proceedings in the San Juan River Adjudication would
take many years, entail great expense, and prolong uncertainty
concerning the availability of water supplies in the San Juan River
Basin in New Mexico.
In 2009, Congress approved and ratified the San Juan Settlement and
authorized the Bureau of Reclamation to construct, operate and maintain
the Project in substantial accordance with the preferred alternative
outlined in the Draft Environmental Impact Statement, which Reclamation
completed in July 2009. See, Omnibus Public Land Management Act of
2009, Title X, Part III (Public Law 111-11) (the ``2009 Act'').
Consistent with the San Juan Settlement and the 2009 Act, the Nation
agreed to execute waivers and releases of claims against the United
States relating to water in the San Juan River Basin in exchange for
the benefits of the San Juan Settlement and legislation. The waivers
can be nullified if the Project is not completed under the timeline set
forth in the legislation.
On December 17, 2010, the United States, the Nation, and the State
of New Mexico executed the San Juan Settlement. On November 1, 2013,
the San Juan River adjudication court entered two Partial Final
Judgments and Decrees (``decrees'') adjudicating the water rights of
the Navajo Nation.
The Project
The Project, once fully constructed, will convey a reliable
municipal and industrial water supply from the San Juan River to the
eastern section of the Nation, the southwestern portion of the
Jicarilla Apache Nation, and the city of Gallup, New Mexico through two
pipelines approximately totaling 300 miles, 19 pumping plants, and two
water treatment plants. The areas currently rely on a rapidly depleting
groundwater supply that is of poor quality and inadequate to meet the
current and future demands of more than 43 Navajo chapters, the city of
Gallup, and the Teepee Junction area of the Jicarilla Apache Nation. Of
specific concern is that the city of Gallup's groundwater levels have
dropped over 200 feet over the past decade and, as noted, nearly 30
percent of the Nation's households rely on hauling water.
The Project is designed to serve a 2040 population of approximately
250,000 through the annual delivery of 37,764 acre-feet of water from
the San Juan Basin. The 2009 Act requires that all project features be
completed no later than December 31, 2024, unless the Nation, the State
of New Mexico, and the Department of the Interior agree to extend the
completion date.
The Project's Construction Cost Estimate of $870 million as
provided in the 2009 Act was based on Appraisal-Level designs and cost
estimates. Appraisal Level studies are typically only conducted at a
level to determine if there is a Reclamation interest in a proposed
project and if a viable project alternative may be recommended by
Reclamation for feasibility level of study. Appraisal Level studies are
based primarily on existing data and information, and they only include
designs and cost estimates for major features that can be used to
compare potential project alternatives.
A number of elements have created conditions that have increased
the Project's cost beyond what was anticipated in the 2009 Act. Among
the factors are greater expenses than expected for compliant water
treatment plants to meet Safe Drinking Water Act requirements,
engineering challenges in diverting water from the San Juan River, and
market volatility that the indexing provided for under the 2009 Act did
not completely reflect (including a 40-year high in the inflation
rate). Since 2009, Reclamation has developed a Project Working Cost
Estimate based on actual contract awards, required Project revisions,
and final detailed design and engineering. The greatly improved quality
and accuracy of the design and cost data that has gone into the current
Working Cost Estimate supports the revised construction ceiling of
$2,175,000,000 (with indexing), which will adequately support the
completion of this critical Project.
In 2012, construction on the Project began and is anticipated to be
completed in 2029. Reclamation and its partners have made significant
progress, completing certain portions of the Project. In October 2020,
the Cutter Lateral, one of the two pipelines, was completed and the
Navajo Tribal Utility Authority begin making initial water deliveries
to Nation communities. By May 2021, Project water was being delivered
to approximately 6,000 people in eight Navajo Chapters. Much work,
however, is left to be done to serve the remaining population who need
a reliable water supply. Although progress has been made on the
Project, Reclamation does not anticipate that construction will be
completed until 2029. This timeline is problematic because the 2009 Act
requires the completion of all Project features by no later than
December 31, 2024.
Amendments to the 2009 Act
To address the appropriations shortfall and ensure full
implementation of the 2009 Act, H.R. 3977 makes the following
amendments to the 2009 Act:
increases project funding by increasing the appropriations
ceiling to $2,175,000,000 for the Project. It would also
update provisions on adjustments to the appropriations
ceiling to reflect changes in construction cost and
applicable regulatory standards and to accommodate
unforeseen market volatility, including repricing for the
types of construction and current industry standards
involved.
increases appropriations for conjunctive use wells in the
San Juan River Basin to $37,500,000 from $30,000,0000 and
allows appropriations for conjunctive use wells in the
Little Colorado River and Rio Grande Basins, as well as the
San Juan River Basin, to be available through fiscal year
2032.
extends the completion deadline for the Project from 2024
to 2029.
allows for deferral of construction of facilities to save
operation and maintenance costs associated with such
facilities. The bill would create a Deferred Construction
Fund to provide funding for facilities that have been
deferred and allow for alternate project facilities if the
relevant parties agree. The fund would consist of amounts
that correspond to portions of the Project that have been
deferred.
creates operations and maintenance trust funds for the
Navajo Nation and the Jicarilla Apache Nation to use for
the Project's operations, maintenance, and replacement
costs. These trust funds are created as a substitute for
language in the 2009 Act allowing the Secretary to waive
operation, maintenance, and replacement costs for the
Nation for up to 10 years after they would otherwise be
required under the Nation's contract. Trust funds would be
used to lower customers' operations and maintenance charges
and will help develop adequate customer bases for the water
projects in their early stages.
authorizes the expansion of the service area beyond the
San Juan River Basin to deliver water supply from the
Project to communities within the Rio San Jose Basin in New
Mexico. The Nation would also be authorized to expand the
service area in Arizona beyond Fort Defiance and Window
Rock to deliver water supply from the Project to the Nation
community of Lupton, Arizona, within the Little Colorado
River Basin, but would still be subject to section
10603(c)(1) of P.L. 111-11 limiting the delivery of water
to Arizona until certain conditions are met.
clarifies which construction activities are subject to
state taxation and which ones are subject to tribal
taxation, preventing double taxation.
caps the repayment obligation of the City of Gallup for
the Project at $76,000,000.
takes into trust land on which project facilities are
located.
authorizes the Secretary to expend funds for the
development of renewable energy, including hydropower, to
provide affordable energy for the Project.
Senate Committee on Indian Affairs Amendment in the Nature of a
Substitute
Note, on November 15, 2023, the Senate Committee on Indian Affairs
ordered the Senate companion bill to H.R. 3977 (S. 1898) to be reported
with an amendment in the nature of a substitute (ANS) favorably. The S.
1898 ANS: (1) provides for the delivery of non-Project water using
Project and non-Project infrastructure to Utah for the benefit of
Navajo communities, under certain conditions; (2) addresses minor
drafting errors; and (3) revises language at the request of the
Department of the Interior regarding the transfer of ownership of land
underlying the San Juan Generating Station. The Nation would like to
work with this Subcommittee and the bill's sponsors to secure the same
amendments at mark-up before the House Natural Resources Committee.
Conclusion
The passage of H.R. 3977 is critical to the health and well-being
of the Navajo Nation and the other communities to be served by the
Project that are struggling with inadequate groundwater supplies. If
H.R. 3977 is not enacted, the San Juan Settlement and the completion of
the Project will be threatened, which would increase the cost of the
Project, exacerbate the drinking water crisis on the Navajo
Reservation, and bring uncertainty to all of the water users in the San
Juan River Basin in New Mexico. I therefore respectfully urge the
Committee to support the swift passage of H.R. 3977.
H.R. 6599, Technical Corrections to the Northwestern New Mexico Rural
Water Projects Act, Taos Pueblo Indian Water Rights Settlement Act, and
Aamodt Litigation Settlement Act
Ya'at'eeh, Chairman Bentz, Ranking Member Huffman, and members of
the Subcommittee. My name is Dr. Buu Nygren and I am the President of
the Navajo Nation. Thank you for the opportunity to submit written
testimony in support of the Technical Corrections to the Northwestern
New Mexico Rural Water Projects Act, Taos Pueblo Indian Water Rights
Settlement Act, and Aamodt Litigation Settlement Act, H.R. 6599. Thank
you also to Congresswoman Leger Fernandez and Congresswoman Stansbury
for sponsoring this legislation. The Navajo Nation strongly supports
this bill, which would fix problems with the trust fund language
included in multiple Indian water rights settlements enacted during the
2009 and 2010 time period, including the three settlements addressed in
H.R. 6599. The settlements to be fixed by this legislation are the
Navajo Nation settlement of water rights in the San Juan River Basin in
New Mexico, the Taos Pueblo settlement, and the Aamodt settlement of
the water rights of the Pueblos of Nambe, Pojoaque, San Ildefonso and
Tesuque.
The legislation makes a technical fix to Pub. L. No. 111-11, the
legislation that both authorized a settlement of the Navajo Nation's
water rights in the San Juan River Basin and created a Navajo Nation
Water Resources Development Trust Fund (Navajo Trust Fund or Trust
Fund). The technical fix is needed because a provision in Pub. L. No.
111-11 prohibited investment of the Navajo Trust Fund for 10 years
following enactment of the legislation, until 2019. This provision
prohibiting investment for 10 years is not typical in Indian water
rights settlements and resulted in the Navajo Nation being deprived of
millions of dollars of interest that otherwise should have accrued to
the Navajo Trust Fund. The $6.3 million that H.R. 6599 would authorize
to be appropriated to the Navajo Trust Fund represents the amount of
money that would have accrued in our Trust Fund if it had been properly
invested and allowed to remain in the Trust Fund prior to 2019. H.R.
6599 also includes provisions that make a similar fix to the trust
funds for two other New Mexico-based Indian water rights settlements
originally authorized in the Taos Pueblo Indian Water Rights Settlement
Act, Pub. L. No. 111-291 and the Aamodt Litigation Settlement Act, Pub.
L. No. 111-291. These water rights settlements also had technical
errors that resulted in the lack of appropriate investment of
settlement trust funds.
The Navajo Trust Fund established under section 10702 of Pub. L.
111-11 can be used by the Navajo Nation both for construction of
necessary water facilities and for water conservation activities needed
for the Nation to utilize its water rights in the San Juan River Basin.
This Trust Fund has and will continue to provide vitally important
funding for the Nation to use in exercising the water rights recognized
in Pub. L. 111-11 by completing the construction of facilities that are
being built to fulfill the promises of the water rights settlement.
Indeed, this fix to the Trust Fund language is necessary to fulfill the
promise that the San Jan River Basin settlement represents to the
Navajo Nation.
Indian water settlements provide certainty concerning the
availability of water supplies for all parties. This is good policy and
good sense. Consistent with the federal trust responsibility, funding
these settlements is critical to ensuring the ability of settling
tribes to put their water to use. Enacting this bill is an important
step toward fulfilling the economic potential created by the water
rights settlements that Congress enacted for the Navajo Nation, the
Taos Pueblo, and the Pueblos covered by the Aamodt settlement. I
therefore respectfully urge the Subcommittee to support swift passage
of this legislation.
H.R. 8940, the Northeastern Arizona Indian Water Rights Settlement Act
Ya'at'eeh, Chairman Bentz and Ranking Member Huffman and members of
the Subcommittee. My name is Dr. Buu Nygren and I am the President of
the Navajo Nation (``Nation''). Thank you for the opportunity to
testify in support of the Northeastern Arizona Indian Water Rights
Settlement Act, H.R. 8940, which will secure a sustainable water supply
for the Navajo Nation, the Hopi Tribe and the San Juan Southern Paiute
Tribe (collectively the ``Tribes'') and resolve the most significant
outstanding water claims in the State of Arizona. Thank you also to
Representatives Ciscomani, Crane, Stanton, Grijalva, Gallego and
Schweikert for sponsoring this historic legislation. And thank you to
the Governor of the State of Arizona, Katie Hobbs, for her and her
staff's work and to the many non-federal parties in making this
settlement become a reality. For the purposes of my testimony, I am
focusing my comments on those provisions of H.R. 8940 that impact the
Navajo Nation.
The Navajo Nation is the largest federally recognized Indigenous
nation in the country. We provide critical governmental services to
more than 400,000 tribal members, approximately half of whom reside on
the Navajo Nation. Our Nation encompasses more than 27,000 square miles
and is approximately the size of West Virginia. Our lands extend across
11 counties and the states of Arizona, New Mexico, and Utah.
Unfortunately, access to safe, clean drinking water for our members
continues to be an unrealized dream with approximately 30 percent of
Navajo households lacking piped water in their homes. Many of our
people must instead rely on hauling water to meet their daily household
needs. As discussed in more detail below, H.R. 8940 addresses these
needs by investing significantly in desperately needed water delivery
infrastructure projects on the Navajo Nation that will bring safe and
reliable drinking water to Navajo communities in Arizona. This will
make possible the connection of tens of thousands of Navajo people in
Arizona to piped water in their homes for the first time ever.
The lack of access to clean drinking water results in a high cost
to human life. At the height of the COVID-19 pandemic, we were losing
an average of 10 Navajo people a day to the virus. Whereas the Centers
for Disease Control and Prevention reports that COVID-19-associated
deaths among non-Hispanic Whites was 30.3 per 100,000, our preliminary
data from the Navajo Nation Epidemiology Center shows that the COVID-
19-associated death rate among Navajo people was over 800 per 100,000.
Our people were disproportionately impacted by the COVID epidemic and
continue to experience high rates of morbidity and mortality from
infectious diseases, in part because of lack of access to clean water.
It's hard to wash your hands if you don't have running water. Indeed, a
recent Navajo Nation Health Survey identified the key factor leading to
poor health at the Navajo Nation is the lack of piped water in homes.
This settlement offers a path forward in closing the severe water
access gap that exists on the Nation and offers the promise of a more
healthy and vibrant future for our people.
I. The Drinking Water Crisis within the Navajo Nation
More than 30 percent of Navajo households do not have running water
and rely on hauling water, which has a significant impact on the
quantity and quality of available water to those Navajo households that
must haul water. Families that haul water sometimes must rely on non-
potable water sources such as livestock wells to meet their household
water needs, even drinking water needs. A recent study of livestock
wells on Western Navajo found that 11 percent of livestock wells exceed
the maximum contaminant levels set by the EPA for uranium. Seventeen
percent contain high levels of arsenic.\1\ Unfortunately, as our
Department of Water Resources staff sometimes remind us, ``when you're
thirsty, you're thirsty,'' and for some Navajo families that means
drinking the closest available water even if it is unsafe. A large
proportion of those who do have piped water to their homes depend on
public water supply systems that have exceeded the maximum sustainable
withdrawal capacity of their source aquifers, have poor water quality,
and are susceptible to drought.\2\
---------------------------------------------------------------------------
\1\ See Dissolved Uranium and Arsenic in Unregulated Groundwater
Sources--Western Navajo Nation--Jones--2020--Journal of Contemporary
Water Research & Education--Wiley Online Library.
\2\ See Water Resources Management Strategy for the Navajo Nation
prepared by the Navajo Nation Department of Water Resources, p. IX
(``WRMS'') Strategy Document (frontiernet.net).
---------------------------------------------------------------------------
The lack of a reliable and affordable potable water supply
suppresses economic growth throughout the Navajo Reservation and
contributes to a high incidence of disease and infection attributable
to the lack of access to clean drinking water. These conditions place
significant financial burdens on Navajo and federal programs that treat
diseases and illnesses and that could be prevented if adequate safe
water supplies were available.\3\
---------------------------------------------------------------------------
\3\ See WRMS, p. IX.
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The lack of a safe and reliable water supply also places a
tremendous economic burden on the Navajo people. According to the
Navajo Department of Water Resources, ``[f]amilies, which haul water
for domestic purposes, spend the equivalent of $43,000 per acre-foot of
water compared with $600 per acre-foot for typical suburban water users
in the region. The Navajo water hauling cost is $133 per thousand
gallons. This water is among the most expensive in the United States
for a sector of the population that is among the poorest.'' \4\
Although H.R. 8940 will not eliminate water hauling, it will deliver a
source of potable water that is of higher quality, more reliable, and
closer to the homes of water haulers.
---------------------------------------------------------------------------
\4\ Id. There are 325,851 gallons in an acre foot.
---------------------------------------------------------------------------
In the past decade the Navajo Nation has invested $800 million in
water and wastewater infrastructure from a combination of its own
investments and a mix of other federal resources. Notwithstanding the
commitment of the Navajo Nation, there is a significant funding gap to
meet the basic needs of our people. H.R. 8940 will address these
funding deficiencies.
II. Key Components of the Settlement
H.R. 8940 authorizes, ratifies, and confirms an historic water
rights settlement (``Settlement Agreement'') between the Navajo Nation
and 38 other parties, including, the Hopi Tribe, the San Juan Southern
Paiute Tribe, the United States, the State of Arizona, Arizona State
Land Department, Salt River Project, Arizona Public Service, Central
Arizona Water Conservation District, Bar T Bar Ranch, the Cities of
Winslow, Flagstaff, Holbrook, Taylor, Snowflake, Show Low, Eagar,
Springerville, St. Johns, local irrigation districts and ranchers
located within the Little Colorado River watershed. The Settlement
Agreement reflects decades of settlement negotiations and the
legislation, once enacted by Congress, will settle Navajo Nation's
claims to the Little Colorado River, the Gila River, and the Upper and
Lower Basins of the Colorado River, as well as with respect to washes,
tributaries, springs, and underground water flowing on and underlying
the Navajo Nation. Upon approval by Congress, the Nation will be able
to focus efforts on developing our water resources and building an
economy. Thereby we hope to improve the health and living standard of
our people and ensure that our homeland and our people thrive now and
into the future.
The 25th Navajo Nation Council unanimously approved the Settlement
Agreement on May 23, 2024. It was also unanimously approved by the
councils for the Hopi Tribe and the San Juan Southern Paiute Tribe in
May 2024.
A. Water Claims Resolved
The Settlement Agreement once confirmed by Congress through
enactment of H.R. 8940 and the Senate companion S. 4633 will provide a
comprehensive settlement of the Nation's water rights in Arizona. Under
the terms of the Settlement Agreement, the Navajo Nation will have the
right to 44,700 acre-feet per year (AFY) of Colorado River water from
the State of Arizona's Upper Colorado River Basin allocation and 3,600
AFY of Fourth Priority Lower Basin Colorado River water.
The Nation will be entitled to divert and deplete all surface water
that is tributary to the Little Colorado River that reaches the Navajo
Reservation, provided that such diversions and depletions shall not
interfere with or diminish existing surface water uses. The Nation will
have the right to divert and deplete any surface water of the mainstem
of the Little Colorado River that reaches the Navajo Reservation. The
Nation will also have the right to divert and deplete up to 40,780 AFY
of surface water from the Little Colorado River for specific historic
irrigation projects in specified quantities and with identified
priority dates. The Nation will have the right to all the groundwater
that underlies the Navajo Reservation including the Navajo (``N'')
aquifer and the Coconino (``C'') aquifer. Resources shared by the
Navajo Nation and the Hopi Tribe, including the N-aquifer and certain
washes, are subject to an intertribal use and management agreement that
includes a limit on annual pumping from the confined portion of the N-
Aquifer and the Shonto recharge area to 8,400 AFY.
B. The iina ba--paa tuwaqat'si pipeline and the Implementation Fund.
The iina ba--paa tuwaqat'si pipeline is a key component to the
Settlement Agreement. The pipeline will deliver a portion of the
Nation's Upper Basin Colorado River allocation and a portion of the
Nation's Lower Basin Colorado River allocation from Lake Powell to the
Navajo Chapters of Cameron, Bodaway/Gap, Tuba City, Coppermine, Bitter
Springs, Cedar Ridge, Coal Mine Mesa, Grey Mountain, and Lechee and to
the San Juan Southern Paiute Reservation. It will also deliver water
from Lake Powell to Hopi Villages at Moenkopi, First Mesa, Second Mesa,
Third Mesa, Howell Mesa, and Keams Canyon. The cost of constructing the
pipeline is estimated to be $1.715 billion based on the Bureau of
Reclamation's Navajo-Hopi Value Planning Study--Arizona dated October
2020, updated in 2023). The sizing of the pipeline project is based on
an annual population growth rate of 1.8% and a municipal per capita
water demand of 130 gallons per capita per day. H.R. 8940 provides a
mandatory appropriation of $1.715 billion to fund the iina ba--paa
tuwaqat'si pipeline Implementation Fund to be used by the Bureau of
Reclamation to plan, design, and construct the pipeline.
C. Navajo Nation Water Settlement Trust Fund
In addition to the iina ba--paa tuwaqat'si pipeline Implementation
Fund, H.R. 8940 establishes and funds a water settlement trust fund for
each of the three tribes, also funded by mandatory appropriations: the
Navajo Nation Water Settlement Trust Fund--$2.7467 billion, the Hopi
Tribe Water Settlement Trust Fund--$508.5 million, and the San Juan
Southern Paiute Tribe Water Settlement Trust Fund--$29.800 million.
There are five separate accounts in the Navajo Nation Water
Settlement Trust Fund. The largest account is the Navajo Nation Water
Projects Trust Fund, which will receive $2.3692 billion and will be
used to plan, design, construct, operate, and maintain water supply
infrastructure including wells, water treatment facilities, pipelines,
storage tanks, pumping stations, electrical transmission equipment
wastewater treatment facilities and renewable energy facilities to
serve Navajo communities. The proposed projects include:
The iina ba--paa tuwaqat'si pipeline lateral that will
provide potable water to serve the communities of LeChee
and Antelope Point.
The Southwest Navajo Regional Groundwater Project that
will extend the Leupp-Dilkon Project to deliver C-Aquifer
water to Leupp, Birdsprings, Tolani Lake, Teesto, Dilkon,
and Indian Wells.
The Ganado Regional Groundwater Project that will develop
and expand public water systems to deliver C-Aquifer and
Lower Basin Colorado River Water to Kinlichee, Ganado,
Cornfields, Lower Greasewood, Jeddito, and Steamboat.
The Black Mesa Project that will develop and expand public
water systems to deliver N-Aquifer water to Black Mesa,
Forest Lake, Pinon, and Shonto.
The Four-Corners Project that will develop and expand
public water systems to deliver Upper Basin Colorado River
Water to Chinle, Many Farms, Rock Point, Rough Rock, Round
Rock, Sweetwater, Teec Nos Pos, and Tsaile/Wheatfields/
Blackrock.
The Kayenta Area Project that will develop and expand
public water systems to deliver N-Aquifer and Upper Basin
Colorado River Water to Chilchinbeto, Rough Rock, Kayenta,
Dennehotso, Mexican Water, and Oljato.
The Lupton Area Project that will develop and expand
public water systems to deliver Alluvial Aquifer and Lower
Basin Colorado River Water to Houck, Lupton and
Nahata'Dziil.
The Code Talker Lateral that will extend the Code Talker
Lateral waterline and expand public water systems to
deliver Groundwater and Lower Basin Colorado River Water to
Fort Defiance, Red Lake, and Saint Michaels, with an
intertie to the Ganado Area Project.
The Local Upper Basin Water Projects are small local
projects in the Upper Basin that will develop and expand
public water systems to deliver additional water to local
communities.
In addition to the Navajo Nation Water Projects Trust Fund Account,
H.R. 8940 confirms the establishment of four other accounts and
appropriates mandatory funding for these accounts:
The Navajo Nation Renewable Energy Project Fund Account:
$40 million to support Navajo water development projects
with renewable energy;
The Navajo Nation Agricultural Conservation Fund Account:
$80 million to support historically irrigated acreage by
implementing modernized irrigation infrastructure, and
including replacement and development of livestock wells
and impoundments,
The Navajo Nation OM&R (Operation, Maintenance &
Replacement) Fund Account: $229.5 million to support
operation, maintenance, and replacement costs of the water
projects, and
The Navajo Nation Lower Basin Colorado River Water
Acquisition Fund Account: $28 million to purchase land in
Arizona with senior water rights with the intention to
sever and transfer such water rights for reallocation to
the Navajo Nation.
D. Waivers
In return for resolution of the Nation's water rights claims, the
federal funding to develop the water infrastructure, and such other
benefits as provided in the Settlement Agreement, the Navajo Nation
will waive claims (i) against the State, the Hopi Tribe, the Hopi
Allottees, the San Juan Southern Paiute Tribe and any other individual,
entity, corporation, or municipal corporation under federal, State or
other law including past, present and future claims for water rights
arising from time immemorial and thereafter forever; past, present and
future claims for water rights arising from time immemorial and
thereafter forever based on aboriginal occupancy of the land; past and
present claims for injury to water rights from time immemorial through
the enforceability date; past, present, and future claims for injury to
water from time immemorial and thereafter forever; past, present and
future claims for injury to water rights arising from time immemorial
and thereafter forever based on aboriginal occupancy of the land;
claims for injury to water rights arising after the enforceability date
in a manner not in violation of this Agreement or State law; and past,
present and future claims arising out of or relating to the
negotiation, execution or adoption of the Settlement Agreement, any
judgment or decree approving or incorporating the Settlement Agreement,
or the legislation. The Navajo Nation will also waive its claims
against the United States for all water rights settled under the
Settlement Agreement, including all past, present and future claims for
such water; claims of past or present injury to such water rights;
past, present, and future claims arising out of monitoring activities
by the United States; past and present claims related to foregone
benefits from non-Navajo use of water; past and present claims based on
damage, loss, or injury to land or natural resources due to loss of
water or water rights related to hunting, fishing, gathering, or
cultural rights; past and present claims related to failure to
establish or provide water delivery systems; past and present claims
relating to irrigation projects; and past and present claims based on
failures to provide dam safety improvements.
E. Limited Waiver of Sovereign Immunity
Pursuant to Navajo Nation Resolution CMY-26-24 unanimously
approving the Settlement Agreement, the Navajo Nation will consent to a
limited waiver of sovereign immunity in the circumstance that a party
to the Settlement Agreement brings an action to interpret or enforce
the Settlement Agreement or the legislation or a landowner or water
user in the Little Colorado River Watershed or the Gila River Watershed
brings an action to interpret or enforce the waivers or the decrees and
so long as the action does not include request for an award of money
damages, court costs, or attorneys' fees.
F. Right to Use and to Lease Colorado River water
The Navajo Nation is located in the Upper Basin and the Lower Basin
of the Colorado River. In order to efficiently provide water to Navajo
communities it must have the ability to move the Colorado River water
allocated to the Navajo Nation from the Upper Basin to the Lower Basin
and from the Lower Basin to the Upper Basin. The Settlement Agreement
authorizes such transfers and H.R. 8940 confirms that ability. The
Nation's right to move its water anywhere within the State is
consistent with the intent of the settling parties and Congress to
address critical water needs on the Navajo Reservation irrespective of
which Basin a particular Navajo community is located within. The iina
ba--paa tuwaqat'si pipeline commences in the Upper Basin and crosses
into the Lower Basin delivering Colorado River water from Lake Powell
to both Upper Basin and Lower Basin communities. Some of the Lower
Basin communities it will serve include Bitter Springs, Bodaway/Gap,
and Coalmine, as well as high population/high growth communities like
Cameron and Tuba City. There is a lack of viable options for
development of a firm, sustainable supply of water for the Navajo
Nation in Arizona without the iina ba--paa tuwaqat'si pipeline
delivering surface water to these communities. Therefore, it is
absolutely essential that the Nation be able to effectively move its
water supply within the Navajo Reservation. It would make no sense,
neither economically nor from an engineering perspective, to preclude
the efficient movement of water simply because the Navajo Reservation
happens to be in both Basins.
Like many other congressionally approved Indian water settlements,
the Settlement Agreement provides for the Nation to lease its Colorado
River water to users anywhere within the State and H.R. 8940 confirms
that right. The revenue generated by leasing its Colorado River water
to off-reservation Arizona communities will allow the Navajo Nation to
further develop and/or defray the cost of water infrastructure for its
communities and is an appropriate use of the Nation's Colorado River
water until such time as its population grows into its entitlement. The
Navajo Nation should not be precluded from leasing Upper Basin Colorado
River water to Lower Basin users. Doing so would severely handicap the
Navajo Nation from being able to obtain the full value of the water
which it negotiated.
III. Value of the Settlement
I understand this Committee has taken a keen interest in ensuring
Indian water rights settlements are fiscally sound and provide value to
the American taxpayer. This historic settlement is a solid investment
for the United States for several reasons.
First, the Navajo Nation will forgo seeking legal confirmation
through litigation for a larger amount of water even though we believe
we are entitled to additional water rights under well-established legal
principles. To reach a settlement, the Nation has agreed to reduce the
scope of its water rights to account for the ongoing drought and to
stay within Arizona's Upper Basin Colorado River apportionment. Second,
the ratification of the Settlement Agreement will avoid protracted and
costly litigation. Third, H.R. 8940 will fund important unfunded
federal programmatic responsibilities by using H.R. 8940 infrastructure
development monies to fund federal programmatic responsibilities.
Fourth, securing and delivering a clean water supply to the Navajo
Nation will save the federal government money that would otherwise be
spent treating infectious disease on the Navajo Reservation. As an
example, the Indian Health Service (IHS) estimates each dollar invested
in water and sewer infrastructure could yield savings of $1.18 in
avoided direct health care costs for these diseases.\5\ The projects
contemplated in the Settlement Agreement and funded in H.R. 8940 will
provide the necessary clean and reliable water supply to serve these
communities. Although IHS's numbers are not dispositive for the
entirety of the funds authorized in the settlement, they are
instructive as they show the value of providing these communities a
secure and safe water supply.\6\
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\5\ See Indian Health Service Announces Allocation Decisions for
$702.6 Million in Bipartisan Infrastructure Law Funding/2023 Press
Releases (ihs.gov). https://www.ihs.gov/newsroom/pressreleases/2023-
press-releases/indian-health-service-announces-allocation-decisions-
for-702-6-million-in-bipartisan-infrastructure-law-funding/
\6\ Settlement trust funds are available to supplement IHS
sanitation deficiencies if needed, or to provide programmatic support
if the future waste-water infrastructure demands fall outside of the
IHS authorities.
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Finally, and perhaps most important, the Settlement Agreement has
the additional benefit of resolving difficult legal questions through
settlement rather than through potentially protracted, and expensive,
litigation. Indeed, by the Tribes' settling their claims to the
Colorado River, they have agreed to avoid complex legal questions
regarding the applicability of interstate compact obligations to senior
Indian water rights, which could destabilize the delicate balance that
exists among the Colorado River Basin states and water users under the
Law of the River. The Settlement Agreement enables the many people who
depend on the Colorado River to move forward together, in harmony,
rather than fighting over this limited and critical water resource.
IV. Conclusion
H.R. 8940 is historic legislation. When the history is written,
passage of the Northeastern Arizona Indian Water Rights Settlement Act
will be described as providing an opportunity for members of the Navajo
Nation and those of the Hopi Tribe and the San Juan Southern Paiute
Tribe to enjoy the health and prosperity of other citizens of the State
of Arizona and the United States. It provides us with certainty that
the Navajo Nation will flourish as a permanent homeland for generations
to come. Once legislation is enacted, the Settlement Agreement is
conformed to be consistent with the legislation, the adjudication
courts issue the decrees, and the Settlement Agreement is enforceable,
the Settlement Agreement provisions will encourage stronger
cooperation, collaboration, and coordination between the settling
parties,--both tribal and non-tribal. On behalf of the Navajo Nation, I
respectfully request that this Congress pass the Northeastern Arizona
Indian Water Rights Settlement Act as soon as possible.
H.R. 8945, Navajo Nation Rio San Jose Stream System Water Rights
Settlement Act of 2024
Ya'at'eeh, Chairman Bentz, Ranking Member Huffman and members of
the Subcommittee. My name is Dr. Buu Nygren and I am the President of
the Navajo Nation. I appreciate this opportunity to share with you the
Navajo Nation's strong support for H.R. 8945, the Navajo Nation Rio San
Jose Stream System Water Rights Settlement Act of 2024. I also wish to
convey the gratitude of the Navajo Nation to Representative Leger
Fernandez for her commitment to improving the lives of the Navajo
People and for her leadership in sponsoring this important legislation.
H.R. 8945 would authorize the Secretary of the Interior to execute,
on behalf of the United States, a settlement agreement to quantify the
Navajo Nation's water rights in the Rio San Jose Basin, ending four
decades of litigation over that basin, and recognize water rights in
the Rio Puerco basin as well. The Navajo Nation Council approved the
Navajo Nation Rio San Jose Settlement Agreement (the ``Navajo Nation
Settlement Agreement'') unanimously in May 2024. The Rio San Jose Basin
is one of the driest basins in New Mexico, and the last 150 years have
seen significant non-Indian development result in depletion of surface
and groundwater. Without congressional action to authorize this
settlement, and the legal protections and infrastructure development,
including water imports, that it promises, the water supply situation
will become more dire. The Navajo Nation Settlement Agreement provides
a path forward that will protect the flow that remains in the Rio San
Jose and provide the Navajo Nation with funding that would enable us to
import water to serve Navajo Chapters in the Rio San Jose and Rio
Puerco Basins.
The Navajo Nation Settlement Agreement authorized by H.R. 8945 is
the Navajo Nation counterpart to the agreement settling the water
rights claims of the Pueblos of Acoma and Laguna (titled the ``Local
Settlement Agreement''), which has authorizing legislation pending as
H.R. 1304. The same parties who worked on the settlement for these
Pueblos came together to develop an agreement that resolves the Navajo
Nation's claims in the same geographic area covered by the Pueblos'
Local Settlement Agreement. The Navajo Nation Settlement Agreement is
written as an Addendum to the Local Settlement Agreement. These fully
compatible water rights settlement agreements, if they are implemented,
provide a comprehensive settlement of tribal claims in the Rio San Jose
Stream System.
I. Geography and History of the Negotiations Leading to Settlement
The area covered by the settlement is in the Eastern part of the
Navajo Nation, within the Rio Grande Basin. To Ba'aadii (Female River--
the Rio Grande), born from one of our sacred mountains, is one of the
four sacred rivers that set the boundaries for Dinetah (Navajoland) and
is a protector for the Navajo People. The Rio Grande is a binational
stream system, with its headwaters in Colorado. It flows down toward
New Mexico, Texas, and 5 states in Mexico, all within a 335,000 square
mile watershed. 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. Approximately 41,000 acres of land are held in
trust for the Navajo Nation within the Rio San Jose basin and 35,500
acres of land are held in trust within the Rio Puerco basin. Nine
chapter communities are located in the Rio San Jose Basin (Baca/
Prewitt, Casamero Lake, Crownpoint, Littlewater, Mariano Lake, Ramah,
Smith Lake, Thoreau, Tohajiile) and seven chapter communities are
located in the Rio Puerco Basin (Tohajiilee, Torreon, Ojo Encino,
Pueblo Pintado, Whitehorse Lake, Counselor, and Littlewater).
Approximately 7,500 Navajo Nation citizens live in these two basins.
Two Pueblos, Acoma and Laguna, are also located in this area.
The Navajo Nation Settlement Agreement is the product of
approximately 40 years of litigation and decades of negotiations. The
Rio San Jose general stream adjudication, known as New Mexico ex
rel.Martinez v. Kerr-McGee Corp., still pending in the Thirteenth
Judicial District Court for the State of New Mexico, was initiated in
1983. The Navajo statement of claims was filed in 1987. Negotiations
regarding a potential settlement of the claims of the Navajo Nation and
Pueblos' claims in the Rio San Jose basin were kickstarted in 1993,
when the United States established teams to negotiate comprehensive
settlements of the tribal claims. More intense settlement discussions
were held starting in 2014. The Pueblos of Acoma and Laguna, the State
of New Mexico, and non-Indian water users signed what they titled the
Local Settlement Agreement in 2022, setting out the water rights to be
quantified for the two Pueblos in the Rio San Jose Basin and reaching
agreement on other key issues. The Navajo Nation's rights remained to
be negotiated. In spring of 2024, after working together for over a
year, an agreement on the Navajo Nation's rights was reached. The
parties to the Navajo Nation agreement include the same parties to the
Local Settlement Agreement: the Pueblos of Acoma and Laguna, the State
of New Mexico, the city of Grants, the city of Milan, and the
Association of Community Ditches of the Rio San Jose as well as member
acequias. This agreement on the Navajo Nation's water rights in the Rio
San Jose Stream System is written as an addendum to the Local
Settlement Agreement, to which the Navajo Nation is now a party.
II. Key Provisions of the Settlement
This Act fairly and finally settles the claims of the Navajo
Nation, and the United States acting as the trustee for the Navajo
Nation, 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.. The Act further recognizes water rights of the Navajo
Nation in the Rio Puerco Basin and limits future claims for the
Nation's water rights in that basin. The settlement does not quantify
or affect any water right, or any claim or entitlement to water, of an
Allottee in the Rio San Jose Stream System or the Rio Puerco Basin.
Water rights for allotments will be separately adjudicated from the
Navajo Nation water rights.
As in the Pueblos' settlement, in exchange for significant funding
for needed water infrastructure, the Navajo Nation agrees to make no
priority calls against non-Indian uses under existing water rights. The
Nation further agrees to not impair other users in the development and
use of groundwater on Navajo lands.
The legislation establishes a trust fund for the Navajo Nation
consisting of $200,271,000 for the Navajo Nation Rio San Jose
Settlement Trust Fund to be used for water infrastructure development,
acquiring water supplies, Navajo Nation's Water Rights management and
administration, watershed protection and enhancement, support of
agriculture, water-related Nation community welfare and economic
development, and settlement implementation costs. $15,000,000 of this
amount is to be made available upon appropriation for feasibility
studies, planning, engineering, and design and related regulatory and
pre-construction compliance work for water infrastructure, as well as
for installing groundwater wells on Nation lands to meet immediate
domestic, commercial ,municipal, and industrial needs. Another trust
fund is established in the amount of $23,000,000 for the Navajo Nation
Operations and Maintenance Account, to be used for operation,
maintenance, and replacement of the Nation's water infrastructure.
Under the Navajo Nation Settlement Agreement, the Nation's water
rights will be administered on Nation lands under the Navajo Nation
Water Code. The Navajo Nation permit processes will include protections
for protestants, including the opportunity to appeal Navajo permitting
decisions to state court. The Navajo Nation Settlement Agreement
further provides that the acequias will receive an additional
$3,000,000 from the State of New Mexico for specified water
infrastructure improvements and water acquisition and management-
related costs above the amount provided under the Pueblos' Local
Settlement Agreement, with a provision allowing the acequias to seek
additional state funding if necessary. The concept is that the
hydrologic benefits of improvements made by the acequias should
mitigate impacts of Navajo and Pueblo water development.
III. Planned Water Imports and Value of the Settlement
An important aspect of this settlement is that the Navajo Nation
intends to use part of the funding that would be provided in its trust
fund for costs related to two separate projects that will import water
to help address the water shortfalls in this basin. First, the Rio San
Jose Regional Water Supply Project will import water from the San Juan
River through the Navajo Gallup Water Supply Project. H.R. 8945
includes authorization language to enable the Navajo Gallup Water
Supply Project to service the Rio San Jose basin and to provide for
coordination with the Bureau of Reclamation in design of the connector.
The main water transmission line from Crownpoint is proposed be along
Highway 371 to Thoreau, with connections from the main water
transmission line to the water supply points of the local Navajo Tribal
Utility Authority (NTUA) public water systems. Value Planning is
ongoing to determine if an alternative NGWSP alignment through the city
of Gallup and Iyanbito is more cost-effective. The most cost-effective
route will be adopted. Second, the Nation intends to use trust fund
expenditures to import water from the Middle Rio Grande basin to the
Rio Puerco basin. The Tohajiilee Waterline Phase 1 is under
construction, but lacks a permanent water supply. Securing a permanent
water supply to use in this waterline is the highest Rio Puerco Basin
settlement priority. The waterline alignment begins at the westernmost
tank operated by the Albuquerque Bernalillo County Water Authority, and
it ends at the systems supply point at Tohajiilee Well #2. Together,
the Tohajilee Waterline Phase 1 and the Rio San Jose Regional Water
Supply Project will bring a much-needed, dependable, and high-quality
water supply to Navajo chapters in the Rio Puerco and Rio San Jose
basins.
An additional benefit of the water imports will be to take pressure
off of groundwater and surface water supplies of the Rio San Jose and
Rio Puerco basins. The Settlement Agreement authorizes these imports
into these basins and calls on the Navajo Nation to make them a
priority in order to conserve the scarce water resources of these
basins. Water imports are one of the most effective ways to mitigate
the impacts of groundwater pumping. The imported water will help to
enable more sustainable management of the supplies in these basins, to
the benefit not only of the Navajo Nation but the other water users in
the basin struggling with water shortages.
I want to address this Subcommittee's concern with ensuring that
these water rights settlements are a good value to the American
taxpayer. At a total cost to the United States of $223,271,000, this
settlement is set up to provide excellent value by building off of the
investments already made in the Navajo Gallup Water Supply Project and
Tohajilee Waterline Phase 1. The Navajo Nation, and the United States
as trustee for the Nation, is waiving all claims to water rights within
the Rio San Jose Stream System that the Navajo Nation or the United
States acting as trustee for the Nation could assert in any proceeding
beyond the rights that are recognized in the Navajo Nation Settlement
Agreement, and the Nation waives other claims against the United States
and other parties to the settlement, as set forth in the Navajo Nation
Settlement Agreement and this legislation. The settlement funding will
also cover federal programmatic responsibilities for health care and
water infrastructure. Obtaining access to safe and adequate water
supplies will further save the federal government money that would
otherwise go toward treating diseases, some of which are a direct
result of not having access to clean and safe drinking water. Overall,
this agreement saves significant resources of the United States and all
the parties to the settlement that would otherwise go into costly and
divisive litigation. Instead of fighting over this scarce resource, the
Navajo Nation will obtain funding to use for infrastructure to
ameliorate water supply and management challenges.
IV. Conclusion
In conclusion, I want to say a few words about the importance of
water to my people. Since Navajo creation, water has served as a
fundamental element to Navajo life. To bei da' iina, (with water, there
is life), and it is elemental to Hozhoogo Oodaal (the Navajo Way of
Life). We pray and make offerings for rain to fill our rivers so our
animals, crops, land, and people can grow and thrive. In the Hozhooji
(Blessingway Ceremony), we cleanse our bodies with water and wash our
hair to restore harmony to our lives. Many Navajo People are connected
to water through our clan names. The spiritual aspect of water is
intertwined with the economic and social value of water as a basic need
for any community. This settlement of additional aspects of the Navajo
Nation's water rights claims in New Mexico will ensure that a
meaningful water source will be available and accessible to the Navajo
People living in the Rio San Jose and Rio Puerco basins in the near
term and for generations to come. This settlement represents a win-win
outcome for all parties, including the Navajo Nation, the non-Navajo
water users, the State of New Mexico and the United States. I therefore
respectfully urge the Committee to support swift passage of this
legislation.
______
Mr. Bentz. Thank you. I now recognize Governor Vicente for
5 minutes.
STATEMENT OF THE HON. RANDALL VICENTE, GOVERNOR, PUEBLO OF
ACOMA, ACOMA, NEW MEXICO
Mr. Vicente. [Speaking Native language.] Chairman Bentz,
Ranking Member Huffman, Congresswoman Leger Fernandez,
Congresswoman Stansbury, and members of the Subcommittee, I am
Governor Vicente from the pueblo of Acoma. With me is Second
Lieutenant Governor Martinez of Laguna Pueblo, our partner in
the Rio San Jose settlement.
We are honored to have with us Governor Madalena from Jemez
Pueblo and Governor Shije of Zia Pueblo, signatories to the San
Rio Jemez settlement. Each of our pueblos has submitted written
testimony for the record. We are here with the full support of
our non-Indian neighbors and the state of New Mexico. We urge
swift action on H.R. 1304, Federal legislation authorizing our
respective water settlements in the Rio San Jose and the Rio
Jemez.
We are ancient peoples. Our spirituality is intimately tied
to the land and water since time immemorial. Acoma and Laguna
have lived along the Rio San Jose, as Jemez and Zia have lived
along the Rio Jemez. Our spiritual beliefs, songs, and cultural
ways are inextricably intertwined with those rivers and the
lands around them. We built homes, raised families, grew crops,
and thrived along these rivers.
As you consider H.R. 1304, please bear in mind that our
negotiated settlements reflect the values, beliefs, and
principles, and that these settlements are crucial to preserve
and continue our traditions for future generations.
Enactment of H.R. 1304 will secure the water needed to
sustain our people into the future and provide us with
desperately-needed resources to access and use that water to
sustain our pueblos. It will also protect Indian water uses and
provide greater certainty for all parties.
For Acoma and Laguna, upstream diversions on the mainstream
Rio San Jose began in the 19th century, depriving both pueblos
of surface water in the 20th century. Other groups came to the
Rio San Jose Valley and began to exploit the groundwater, first
the railroads, then the city of Grants, and in the 1950s
uranium mining and mills. And in the 1980s, a regional coal-
fired power plant.
Groundwater aquifers and the springs supported by the
aquifers are severely depleted. New large users pumped so much
groundwater that the water stopped spilling over the Ojo del
Gallo spring, and reduced the flow from the spring's major
sources of water for the Rio San Jose. The base stream flow of
the Rio San Jose has been reduced by over 90 percent where it
reaches the pueblos. The spring's flow has declined from 14
cubic feet per second to 1.8 cubic feet per second. Without
adequate water recharge to the aquifers, we have no reliable
fresh water freshwater supply.
The Rio San Jose settlement provides for installation of
groundwater wells on pueblo lands to meet immediate water needs
and for infrastructure needed to bring water to the pueblo
lands from the last remaining unused water in the stream
system. For the Jemez and Zia pueblos, upstream, non-Indian
water use has severely compromised the pueblos' access to
adequate water and sustain their farms.
Water shortages have been severe for decades since 1986.
Jemez, Zia, and neighboring acequias have been forced to
operate under a difficult irrigation rotation agreement because
of scarce water supplies in the Rio Jemez. Federal legislation
authorizing water settlement will enable development of a water
augmentation project that is crucial to avoid conflicts between
the pueblos and non-Indian water users over access to
increasingly scarce surface water, and to protect and
strengthen relationships among the community of water users in
the Rio Jemez Basin.
Our four pueblos have been engaged in litigation to protect
our water. And with water rights for more than 40 years, in
2022, we reached settlements negotiated with all local parties:
the state of New Mexico, other tribes, neighboring towns, and
community acequias and ditches. We signed these agreements over
2 years ago. With every passing day, more damage is done to the
water supply on which our pueblos and non-Indian communities
depend. We desperately need Congress to authorize these
settlements so we can begin to address the dire water
shortages.
Acoma, Laguna, Jemez, and Zia urge the Committee to act
favorably on H.R. 1304 as quickly as possible, and champion
passage of our bill in the 118th Congress. We thank you for
holding this hearing and for your time today. [Speaking Native
language.]
[The prepared statement of Mr. Vicente follows:]
Prepared Statement of Randall Vicente, Governor, Pueblo of Acoma
on H.R. 1304
Acoma Pueblo (``Acoma'' or ``Pueblo'') strongly supports H.R. 1304,
legislation to approve the settlement of the Pueblo's water rights
claims. 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 legislation is the culmination of decades of work 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, if not the nation. This bill 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 groundwater 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\ This adjudication involves all surface and groundwater users in
the system.
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THE PUEBLO OF ACOMA
[GRAPHIC] [TIFF OMITTED] T6360.021
Sky City, Acoma the ancestral village and ceremonial heart of
the Pueblo of Acoma.
The Rio San Jose Stream System has been the primary source of water
for the Pueblo of Acoma for centuries, 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. Water has always been the limiting
resource. The average yearly rainfall 7 inches. The streams, aquifers,
and springs that once fed the Rio San Jose, the life blood of our
communities and our agrarian way of life, has been decimated over the
last 150 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. Our
spiritual beliefs, songs and cultural ways reflect the landscape. We
are an ancient people. We have rituals that are hundreds, if not a
thousand years old, ceremonies that date back to our beginning. 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 and water. We
define ourselves according to geologic formations, water sources 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. The Rio San Jose once flowed
rich with wildlife. We built homes, raised families, grew crops, and
lived off our river. Children in our villages played, fished, and swam
in the deep flowing waters. We used the water to farm and irrigate our
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.
[GRAPHIC] [TIFF OMITTED] T6360.022
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 have long attached ceremonial significance to the
river as it weaves its way across our homelands. While these ceremonial
uses have been threatened over the past 150 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. 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 cultural
property of Acoma and Laguna Pueblos and the Navajo Nation. Snowmelt
and summer monsoon rains feed both surface water and groundwater
aquifers. A network of faults related to volcanism around Mt. Taylor
adds complexity to the hydrology of the basin.2 The faults
send groundwater to the surface forming springs such as Ojo del Gallo
and Horace Springs. Today the primary aquifer to provide surface flow
across Acoma is the San Andres-Glorieta Aquifer. West of Ojo del Gallo
it is near the surface, just below the alluvium. At the fault, it
constricts water flow and plunges 2,000 feet underground. Its
significant flows produced Ojo del Gallo and fed the alluvial aquifer
of the Rio San Jose. Just downstream the bedrock constricts, producing
Horace Springs on the western boundary of the Acoma Pueblo 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 then fed the Rio San Jose as it flowed across Acoma and Laguna
Pueblos. These other aquifers no longer discharge appreciable amounts
of water into the stream system.
[GRAPHIC] [TIFF OMITTED] T6360.023
Schematic Presentation of Hydrology of Stream System before
human activity except Bluewater Lake
ACOMA WATER USE PRIOR TO U.S. SOVEREIGNTY
Prior to United States' sovereignty in 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
alluvial 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 New Mexico describes Acoma Pueblo irrigating from the Rio
San Jose in 1583.\3\ While there were small communities established by
Spain or 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:
---------------------------------------------------------------------------
\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 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 and recognize 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 are 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 BY THE UNITED STATES IN 1862
Today the primary sources of water in the Rio San Jose are very
few. Spring flow is 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 trickle slowly
flows across the Pueblo. Now, the flow from the spring has dropped 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 greater--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, due to climate
change and long-term drought, snow melt is significantly reduced,
limiting flows into Bluewater Lake and the river. Less snow melt
contributes to reduced water levels in streams and aquifers.
In 1862, The U.S. Army established Fort Wingate on Acoma aboriginal
lands, the Fort diverted Ojo del Gallo spring flow that provided
approximately one-third to one-half of the surface water supply to
Acoma. After the Fort was moved west near Gallup, New Mexico, the U.S.
did not 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 still 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, a major tributary of the Rio San Jose. By the
1920s, 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. The dam washed out but was
re-built and significantly enlarged in 1927. Originally meant to
service 2,000 acres of land for irrigation it grew to a proposed 10,627
acres .
Acoma and Laguna Pueblos complained to the U.S. that the enlarged
Dam would interfere with their water rights and asked the U.S. to stop
the construction. In response to Pueblo concerns, the U.S. brought suit
in 1921 to cancel easements for the Dam site.\8\ But rather than
protecting the Pueblos by vigorously litigating the case, the U.S.
failed to prosecute the case; the lawsuit was dismissed in 1923 for
non-prosecution.\9\ The Pueblos were assured by various U.S. officials
that there would be no damage; that the Dam would have little or no
effect on their water supply.\10\ The enlarged Dam at Bluewater was
allowed to go forward by the U.S.\11\
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\8\ See United States v. Bluewater Land and Irrigation Company, et.
al. No. 805 Equity (D. Ct. N.M.).
\9\ Kelly, Lawrence C., ``History of the Pueblo Lands Board, 1922-
1933, With Special Emphasis on Water Rights in the Northern Pueblos,''
4-6 (``In 1920 Hanna prepared and filed ejectment suits against the
non-Indian claimants on five Pueblos, and took one of them, United
States v. Pedro Garcia, as a test case before the federal district
judge, Colin Neblett. Neblett heard the testimony and arguments but had
not rendered a decision when the case was withdrawn at the request of
U.S. Attorney General Harry Dougherty and Secretary of the Interior
Albert B. Fall in the fall of 1921.'')
\10\ See Nov. 5 1923 Letter from Commissioner Chas. H. Burke to Mr.
Harmon P. Marble, Supt. Southern Pueblos Agency, (``Correspondence has
been had with Col. Twitchell . . . regarding reconstruction of a dam
above Bluewater. . . . With the view of placing these interests on
notice that the United States will look with disfavor upon any action
taken by them interfering with the water rights of the Indians of the
Pueblos of Acoma and Laguna, and that, if necessary, adjustment will be
made through the courts, you are directed to notify these people to
this effect. There is a possibility that the reconstruction of this dam
will not encroach upon the water rights of these Pueblos but such
action is deemed advisable so as to prevent in future any assertion on
the part of these interests, in the event infringement actually takes
place, that the United States permitted the reconstruction of the dam
without in any way voicing its disapproval.''); see also Oct. 24, 1923
Letter from R.E. Twitchell, Special Assistance to the Attorney General,
US Department of Justice to Hon Chas. H. Burke, Commissioner of Indian
Affairs (``..[r]elative to the rebuilding of a dam above Blue Water . .
. Mr. W.M. Reed, chief engineer of the reclamation service, together
with Mr. Robinson, supervising engineer, were in my office and we
discussed briefly the question of whether there would be any
encroachment upon the water rights of Acoma and Laguna owing to the
construction of this project. I was much gratified to hear from Mr.
Reed that in his judgment it was more than likely that the construction
of the project would result in increasing the supply of water for these
Indians rather than diminishing it . . .''); see also Oct. 2, 1923
letter from Special Assistant to the Attorney General (Twitchell) to
Mr. H.F. Robinson, Supervising Engineer quoting a letter from Captain
Reid in which he states, ``I do not think there is the slightest
possibility that this irrigation project will affect the Indians' using
the stream below at all. If any effect results from this, I think it
will be a beneficial one . . .[.]'' Captain Reid was a strong advocate
for the project.
\11\ See Pueblo de Acoma v. United States, 18 Ind. Cl. Comm. 154,
175 (1967).
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When BTID farmers 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
N.M. State Engineer to drill wells. Those wells tapped the San Andres-
Glorieta aquifer. This siphoned off water that would have flowed as
surface water in the Rio San Jose across the Pueblo. Over time, Rio San
Jose flow at Horace Springs decreased to 5-6 cfs.
The United States, while aware that the Dam was interfering with
Pueblo water use, did nothing despite repeated Pueblo objections.
Attorneys for the Pueblo appointed by the U.S. initially believed Dam
proponents 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 U.S. purchase lands in BTID to free up water for the Pueblos.
This was rejected by BIA leadership. After the U.S. 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 BTID
declined the request, although BTID was on notice that the U.S. would
not look favorably on a denial of water to the Pueblos. The U.S.may
have been upset with BTID, but it did nothing.
The Bluewater-Toltec Irrigation District after 1927 Dam and Expansion
The U.S. did nothing to stop drilling of supplemental wells that
tapped the San Andres-Glorieta Aquifer, the source of the lion's share
of surface water through the Pueblo. Acoma strongly objected to this
groundwater pumping 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.\12\
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\12\ General Superintendent to William A. Brophy, Special Atty for
the Pueblo Indians and Eritc T. Hagberg, November 29, 1949.
The U.S. response was to express concern but do nothing to defend
the Pueblo's right to water. Handwringing and commiseration do 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
U.S. to protect Pueblo rights, no action was taken to replace what
Acoma had lost through these trespasses to its water rights.\13\ Yet
reports of the Pueblo Lands Board pursuant to the 1924 Act alerted the
U.S. Attorney General 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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\13\ 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, U.S. 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.\14\
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\14\ Survey of Conditions of the Indians in the United States,
Hearings Before Subcommittee on Indian Affairs, U.S. Senate, Pueblo
Lands Board, Part 20, United States Printing Office, 1932, 10977-78.
Despite this clear 1929 directive, the U.S. did not act to restore
Acoma's water rights until 1982 when the U.S. belatedly filed an action
against the BTID for trespass to the water rights of Acoma and Laguna
Pueblos, see United States v. Bluewater-Toltec Irrigation Dist., 530
F.Supp. 1434 (D.N.M. 1984) (``Bluewater-Toltec''). The U.S. 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 against BTID and its members.\15\ After several procedural
disputes, the federal court case was dismissed so the Pueblos' water
rights would be quantified in the state court adjudication.\16\ 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.\17\ 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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\15\ 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).
\16\ ``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.
\17\ ``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, 40 years after filing the trespass action, and more than 90
years after the construction of the Dam, the U.S. has not acted to
limit the use of surface or groundwater by BTID or other users so as to
provide the Pueblos with an adequate water supply.\18\
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\18\ 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).
[GRAPHIC] [TIFF OMITTED] T6360.024
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
[GRAPHIC] [TIFF OMITTED] T6360.025
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.\19\
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\19\ 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 detonation of the first atomic bomb lit up the New Mexico
desert, it set off an arms race now referred to as the ``cold war.'' At
the start of the cold war, the U.S. created and fueled demand for
enriched uranium to supply a nuclear weapons program. One of the
richest uranium bearing rock in the U.S. is the Grants Mineral belt,
located in the Rio San Jose Stream System.. The effect on the Stream
System was profound.
Groundwater depletions expanded beyond reason in the Atomic Age.
Uranium mining and milling began at the instigation of, and with the
complete backing of the U.S., the only purchaser of the processed
uranium.\20\ 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.\21\
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 the Rio San
Jose. The mining companies were not even required by the U.S. to put
the water that was removed from the aquifers into the Rio San Jose. The
water was discharged to an adjoining river basin. In 1980 the N.M.
State Engineer estimated that some 40,000 to 50,000 acre feet of water
a year were being discharged into the adjoining river basin due to
dewatering.\22\ Water, along with uranium was being mined at an
exorbitant rate.
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\20\ Alvarez, Robert, ``Uranium and the Acoma Pueblo,'' February
17, 2020, Appendix ``Purchases of Uranium by the Atomic Energy
Commission.
\21\ ``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.
\22\ 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.
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The mined 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. Uranium mills 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 used
large amounts of groundwater.\23\
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\23\ 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.
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With the growth of this federally created and subsidized mining
economy, the upstream village of Grants, with a 1940 population of
1,347 \24\ exploded to over 10,000 people in the 1960s.\25\ It relied
on the increasingly stressed groundwater without any protest by the
U.S. The population of Grants peaked at 11,439 in the 1980s.\26\
Following the collapse of the uranium industry when the U.S.removed its
price supports, the population began to fall and in 2018 was less than
9,000 people.\27\
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\24\ 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
\25\ See https://population.us/nm/grants/ (citing US Census data).
\26\ Id.
\27\ Id.
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Another off-shoot of the uranium boom was the location of the
Plains-Escalante Generation Station (``PEGS'') 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% of
the water transferred.\28\ Plains Electric and its successor, Tri-State
Generation and Transmission Association, Inc. (``Tri-State''), claim to
have used up to 4,272.13 afy.\29\
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\28\ 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.
\29\ 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. B-87-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).
---------------------------------------------------------------------------
Again, the U.S. did not limit this large industrial use to protect
Pueblo uses. Indeed, the approach of the U.S. after an initial
challenge was to reserve these issues for the adjudication of the
Basin--the litigation that is settled with this legislation--rather
than pursue an appeal of permits issued by the N.M. State Engineer.\30\
Tri-State closed 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.\31\
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\30\ 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.
\31\ See https://nmpoliticalreport.com/2021/04/20/the-retired-
escalante-power-plant-may-be-converted-into-a-hydrogen-plant/.
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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. Decades of uranium milling activity
contaminated groundwater in alluvial and other shallow aquifers.\32\
According to the U.S. Environmental Protection Agency (``EPA'') few of
the legacy mines have undergone reclamation.\33\ 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.
---------------------------------------------------------------------------
\32\ 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.
\33\ As noted on the website, approximately 50% 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/
91f296cb3ea24f689329eb 5075ec3bb7.
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Cleanup of contamination uses extensive water resources. 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.
Approximately 22 million tons of ore were milled at the site.\34\ This
milling activity led to 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. Now, 30 years later, the contamination plumes
from the Atlantic Richfield Company mill tailing site and that at the
HMC site are converging.\35\ Cleanup of the HMC site has not been
wholly successful.\36\ Nearly 4.5 billion gallons of contaminated water
have been removed and 540 million gallons of treated water have
injected into the aquifer.'' \37\ Acoma submitted multiple protests to
HMC's applications to drill supplemental wells, on the grounds that
there is insufficient unappropriated water available to satisfy
Homestake's request, yet the applications were approved.\38\ 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. According to reports, water levels in three wells in the San
Andres-Glorieta east of the San Rafael Fault where the aquifer is 2,000
feet below the surface, have declined by 46 feet since
1998.39,40
---------------------------------------------------------------------------
\34\ EPA Third Five-Year Review Report, Homestake Mining Company
Superfund Site, (EPA ID: NMD007860935) Cibola County, New Mexico.
\35\ 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).
\36\ 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.
\37\ 5/9/2019, Homestake Mining Co., Superfund Site Profile,
Superfund Site Information
\38\ 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.'')
\39\ Kathy Helms, ``Official: Dilution Helps Reduce Uranium Mill
Contamination'', Gallup Independent, May 5-6, 2018.
\40\ 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.
---------------------------------------------------------------------------
Today, the groundwater in 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. Experts agree that even if the U.S. enjoined upstream
users, the water supply is so depleted that it would take decades for
sufficient water to reach the Pueblos to meet minimal needs.
[GRAPHIC] [TIFF OMITTED] T6360.026
Schematic of existing hydrology of the Rio San Jose Stream
System
THIS LEGISLATION GIVES ACOMA A VERY DIFFERENT WATER FUTURE
H.R. 1304 will provide 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 loss to Acoma, but the ability to get wet water is a trade-
off that Acoma is willing to make. Damages attributable to the U.S.'
acts 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. H.R.
1304 provides funding for feasibility studies to determine if water in
the only presently unused aquifer in the Stream System 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 historically irrigated acres. Even if this is not
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.
---------------------------------------------------------------------------
WITHOUT THIS LEGISLATION, THERE WILL BE ECONOMIC AND SOCIAL COSTS FOR
THE UNITED STATES AND ALL WATER USERS IN THE STREAM SYSTEM
In the absence of settlement, the U.S. and the Pueblos will
continue in court 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. While that is going forward,
the available water supply is being depleted beyond that necessary to
sustain the Pueblo, much less other users in the Basin. As water supply
is depleted, the costs, both social and economic, of enforcing the
Pueblos' senior priority water rights increase significantly. 100 years
ago, the U.S. Attorney General was told that it was necessary to take
action to protect the Pueblos' ability to use their water. The U.S.
failed to act for a very long time, and now the cost of protecting and
enforcing Acoma's ancient water right is much greater. H.R. 1304 brings
something of much greater value to the Rio San Jose Stream System. It
allows 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 and its neighbors desperately need and support
whole-heartedly.
______
Mr. Bentz. Thank you. I thank the witnesses for their
testimony, and will now recognize Members for 5 minutes each
for questions. We will begin with Ms. Leger Fernandez for 5
minutes.
Ms. Leger Fernandez. Thank you so very much, Mr. Chairman,
and thank each of you for your testimony, once again
highlighting the importance of working out collaboratively with
your neighbors these water rights settlements, and the manner
in which they actually allow you to exist on your reservations,
that without water, it is both sacred, it is life, but it is
also a lifeline to your own historic past.
Thank you, Chairwoman, for the history of what your people
have gone through.
I would like to begin asking a question about the cost of
litigation and the risk there versus the settlements, because
it is expensive. Let's face it, $12 billion is a lot of money.
But these are a lot of settlements, and there are a lot of
water rights that are being given up. And the question is, is
this a fair deal? Is this a good deal for the United States?
Mr. Palumbo, could you kind of touch on that briefly of
whether you think this is a fair deal, a good deal for the
United States, and why, versus going through litigation?
Mr. Palumbo. Thank you very much, Congresswoman. I am happy
to answer that question.
A couple of matters with respect to costs. All of the bills
in front of us today that I am speaking to we have analyzed
fully with respect to litigation risk, litigation costs, versus
settling a negotiated settlement. And we believe this is in the
best interests of all the parties to proceed with a negotiated
settlement.
More importantly are the benefits brought by a negotiated
settlement to these Tribal Nations, these sovereign Nations are
providing real wet water delivered to the reservation for the
beneficial use for tribal members on their homeland. If we went
down a litigation route, that would not necessarily happen. In
fact, often in litigation wet water does not get delivered to
the reservation, does not get put to beneficial use, does not
bring equity to the situation with tribes across the American
West.
So, we believe in the best interest fiscally and the best
interest from an equity perspective, and that is why we support
these settlements.
Ms. Leger Fernandez. And this is meeting our trust
responsibility to the tribes to take the actions we are taking
today.
I would also like to recognize Governor Madalena from the
Jemez Pueblo; Lieutenant Governor Martinez from Laguna;
Governor Shije from the Zia Pueblo, as well as the Gallup Mayor
Bonaguidi. We didn't have enough room at the table. I know
that, for example, Governor Vicente, oh, and Governor, thank
you very much, are here to speak to these issues.
Governor Vicente, can you tell us a bit about the
similarities? I know you have sat at the table with Laguna, you
share the same water. But there are similarities of what you
have been doing with Jemez and Zia, right? You have been
working things out with your neighbors. And indeed, working
things out on litigation that has been going on forever.
I was a brand new attorney 30 years ago when I had to
litigate an appeal as to whether Laguna had lost all of its
water rights. And I can't tell you how happy I am to be sitting
here today with a bill that says we will settle these water
rights. Imagine. I am not young, so that was a long time ago,
and that case had been going on 10 years before that, and it
was acrimonious. And now, you have worked it out. Can you just
give us a quick snippet about what it is like to work out these
difficult issues with people that you have also been litigating
with, but they are also your neighbors?
Mr. Vicente. Thank you for the question, Congresswoman
Leger Fernandez.
This was a very hard decision for Acoma. In the end, it is
better to have adequate wet water than paper rights without a
water supply. Experts tell us that, even if our senior priority
was enforced, it would be decades before water reached Acoma
because the stream system has suffered so much damage. The
primary aquifer that fed the Rio San Jose had been severely
depleted and contaminated. With each passing day, the limited,
inadequate water supply to meet our seniority priority water
rights evaporates.
Necessity required us to look at other means to provide
water to our community. Collaborating with our neighbors to
provide a water future for all required Acoma to give up its
priority.
Ms. Leger Fernandez. Thank you.
And President Nygren, can you tell us why it is so
important that we actually act quickly on the bill to extend
the deadline for the Gallup Navajo pipeline?
What does that mean in terms of people actually being able
to have water in their homes?
Dr. Nygren. Thank you, Congresswoman Leger Fernandez and
the Subcommittee, as well as Chairman.
What is important about the Navajo Gallup water supply is
that time is of the essence because I know the deadline is the
end of this year, and we are trying to extend the deadline and,
at the same time, really try to make up for some of the cost
adjustments over the past several years for inflation, for the
different types of designs that had to go into the new modern
water treatment plants.
Again, this is a settlement from 2009, and then bringing it
up to par of 2024 through 2029 is very critical because we have
thousands and thousands of people that depend on this water
delivery.
At the same time, you have the city of Gallup, who is also
waiting on a permanent water supply. And also to really avoid
tapping into groundwater supply, as well, to relieve some of
that stress to move the communities forward. So, those are some
of the critical things that we have to address.
Ms. Leger Fernandez. Thank you, President. I know you are
here on four bills, which is a lot, but we don't have time to
go into that. My time has expired. And thank you, Navajo, for
doing all that work on all of these water settlements.
I yield back.
Mr. Bentz. Thank you. Congresswoman Stansbury is recognized
for 5 minutes.
Ms. Stansbury. Thank you, Mr. Chairman. And I just want to
start by saying welcome to all of our tribal leaders, our
council members, President, Governor, Chairwoman, Vice
Chairman. Thank you for being with us. And thank you to all of
you who traveled so many miles to be here today.
And I also want to say thank you to Chairman Bentz and to
Chairman Westerman for holding this hearing, because we know
that we can't advance these settlements without your support,
and also to the staff who help make this possible. And, of
course, to our fearless leader, Congresswoman Leger Fernandez,
and Chairman Grijalva, who have been leading the way for so
many generations and years on this work.
In New Mexico, we say water is life. It also is culture, it
is language. It is who we are. It is sacred. It is what
sustains our communities. It is what sustains our farms. It is
what sustains our bodies. It is what sustains our spirits, and
it is what sustains our economies. And since time immemorial,
our Tribal Nations and our Pueblo Nations have used those
sacred waters to sustain themselves in all of those ways. Yet,
the United States has failed to protect and to live up to our
treaty and our tribal trust responsibilities to our Tribal
Nations.
So, these bills are really about making good on those
responsibilities, hopefully in some way righting the wrongs of
the past, and really looking to the future of what comes next
for our tribal communities.
And, Mr. Chairman, I would love to use the remainder of my
time to give our tribal leaders who have traveled so far here
today to each share about what do these settlements mean for
your communities going forward, and why is it crucial that we
pass them this year? Starting with Mr. Vice Chairman and going
down the line.
Mr. Andrews. Thank you, Congresswoman Stansbury. That is,
for me, a very simple question, because it has been way too
long for our Tribe, our people to have a water infrastructure
into areas that we have not. And as I stated earlier, I am one
of the statistics, I am one of the people that are still having
to haul water to my home.
There are several villages, or one for a very good example
is our village of Orayvi, which is still inhabited, one of the
oldest inhabited villages in the north continent. They are
having problems with having to get water into their villages,
as well.
But where we have water systems, water system
infrastructure is antiquated. It has been a patchwork for many,
many years by Indian Health Service. So, sporadically, when
funds come in, different materials, of course, come in. And for
that reason, there is patchwork in other areas where it should
be a continuous infrastructure in the ground where it is a lot
more feasible.
Ms. Stansbury. Sorry, just one moment, Mr. Chairman.
Mr. Chairman, would you allow us the grace to give each of
the tribal leaders a moment to answer? I know we are running
short----
Mr. Bentz. No, I will not, but you have your minute and 14
seconds. But I have been giving everybody an extra minute, so
you will have 6 minutes. So, you can see yourself another 2
minutes.
Ms. Stansbury. OK. Well, it is not for me, Mr. Chairman. It
is for our tribal leaders who have traveled thousands of miles
to be here today.
[Laughter.]
Mr. Bentz. I am sorry, Ms. Stansbury. Your time is just
like everyone else's.
Ms. Stansbury. I understand.
Mr. Bentz. It is not their time, it is your time, so
continue. You have 2 minutes.
Mr. Andrews. OK.
Mr. Bentz. Go.
Ms. Stansbury. With all due respect, I thank you, Mr.
Chairman.
Mr. Andrews. I believe I am about finished, so thank you
for that question.
Ms. Stansbury. Thank you.
Chairwoman?
Ms. Lewis. Thank you, Congresswoman Stansbury, for this
opportunity.
It is really important to the Yavapai-Apache Nation as you
read through H.R. 8949, that we are looking to water is life,
water is sacred, as everything you have touched on, it is
correct for Native American people. Our common ground has been
to let this river continue to flow because it not only helps
the Verde River, the Verde Valley, it helps all of us
downstream from us. And we do support that.
We are good stewards to the land. We are a good stewards to
the water. It is very important, and also to be conservative,
to be responsible, and to save from the pumping, and bring in
the Cragin Pipeline into the Yavapai-Apache Nation with the
drinking water facility, as well.
Ms. Stansbury. Thank you, Madam Chairwoman.
Ms. Lewis. Thank you.
Ms. Stansbury. And we have 45 seconds for President and
Governor.
Dr. Nygren. Thank you so much. I think one of the things I
want to say is thank you to the Committee here. With having a
future with water, and to be able to plan for the future, it
makes it easier for the Navajo Nation, Tribal Nations to
continue to plan for the future so that we can make sure that
we plan for economic development, for self-sufficiency, to
build their own economies so that we can continue to uplift
ourselves. And the only way to do that is to have a certain
amount of water that we can plan for. So, thank you.
Mr. Vicente. Thank you, Congresswoman Stansbury.
H.R. 1304 gives Acoma the financial resources to tap the
last remaining unused water in the Rio San Jose stream system
and put it to use. At the same time, it provides funding for
infrastructure projects to greatly improve water use
efficiently for all users in the system.
Ms. Stansbury. Thank you, Governor, and thank you, Mr.
Chairman, I appreciate it.
Mr. Bentz. Thank you. The Chair recognizes Congressman
Gallego for 5 minutes.
Mr. Gallego. Thank you, Mr. Chair.
Good afternoon and thank you to our witnesses for joining
us today. A special thanks to those who traveled from my home
state of Arizona to be here: President Nygren, Chairman Lewis,
and Vice Chairman Andrews. It is great to have you here leading
on issues of such high importance to our state.
Arizona has been a leader in water policy for decades, and
tribes are critical partners in responsible, equitable water
usage. As we develop new approaches to water conservation and
management in the coming years, tribes' senior water rights
must be represented, respected, and maintained. The settlements
we are discussing today are an important step in making that
happen.
The products of years of conversation, these water
settlements are historic. I am honored to be a co-sponsor of
both the Northeastern Arizona Indian Water Rights Settlement
and the Yavapai-Apache Nation Water Rights Settlement Act.
These types of productive, forward-thinking policies are
exactly why I joined the Natural Resources Committee in the
first place, and why I am proud to serve on both the Water,
Wildlife and Fisheries Subcommittee and the Indian and Insular
Affairs Subcommittee. I have been proud to lead congressional
efforts to keep Arizona's water in Arizona, including pushing
for cutting-edge technologies, promoting clean water on tribal
land, and fighting exploitation of water resources, and more.
The bills in this hearing will work towards many of those
same goals, and I am proud to support them. To highlight these
important bills, I do have questions.
President Nygren, you mentioned in your testimony that
approximately 30 percent of homes on the Navajo Nation do not
have running water. Can you tell us a bit more about the water
supply challenges on the Navajo Nation, including the economic
and health burden it places on the Navajo people?
Dr. Nygren. Thank you, Congressman Gallego, and I want to
say thank you so much for everything that you do.
When it comes to the 30 percent of our people that live
without running water, they travel miles and miles in a day and
some of them are on monthly fixed incomes, but they really are
stewards of the land so they continue to be there so that they
can be proud of where they come from. But at the same time, one
of the things that I have been trying to strive for the Navajo
people is self-sufficiency, building a strong economy so that
we can continue to have our own jobs, have our own employment,
and really boost the economy of the Navajo Nation.
But in order to have more hotels, more retail, to increase
tourism on the Navajo Nation we need that water supply so that
people can continue to be proud to live on the Navajo Nation.
And that is one of the things that when this water settlement
does get passed by Congress, that not only is Navajo Nation
going to benefit economically, but the state of Arizona will
continue to push some of those things forward so that we can
uplift ourselves as a Nation, as the state of Arizona, and
Tribal Nations.
As mentioned earlier, all the communities have signed on to
this northeastern Arizona water rights settlement. Flagstaff,
Show Low, the ranchers, the Nation, the Southern Paiute, the
Hopi were unified behind this because we really want to make
sure that we are unified so that we can build a better future
for all of us because we share that area together. Thank you.
Mr. Gallego. Thank you, and you certainly are correct. You
cannot get a better essence of pride until you visit the Navajo
Nation. And since I have been going there for 19 years, I am
glad that we are going to be able to finally get this done.
I also have to recognize, because if not, I will get jeered
by my former classmate from college behind you, Ethel Branch,
who is currently the Attorney General for the Navajo Nation,
too. So, yes, she was a way better student than I was.
[Laughter.]
Mr. Gallego. And then Chairwoman Lewis, thank you again
also for allowing me to visit your Nation and really taking me
actually down to the river that is your sacred river a couple
of weeks ago, and showing me in person why this matters. Can
you explain how the construction of the Cragin-Verde Pipeline
would impact the water security and economic well-being of the
Yavapai-Apache Nation?
Ms. Lewis. Thank you, Congressman Gallego, for your
question, and thank you for your leadership and your service, I
appreciate that.
Yes, it will benefit the Yavapai-Apache Nation in multiple
ways. As shared previously, we would like to ensure that the
Verde River continues to flow. We do not want it to dry up.
That is our life, that is our culture, that is our religion,
and that is what takes care of all of us.
Mr. Gallego. And Chairman, when you and I were there, you
said some of the cultural events that happen. Can you give us a
couple of examples for people to understand what actually
happens there that is important to the life of an everyday
person from your Tribal Nation?
Ms. Lewis. Yes, absolutely. When our young ladies become
women, we do a ceremony at Na'ii'ees, which is an Apache
ceremony that our young maidens participate in, conduct. It is
a way in which we are grown. And we do this along the river. It
tests us in every possible way: the family, the young gal. And
it shows her and teaches her to become a strong young woman.
Along the river, the importance of the river is
specifically because we use baskets, we use the foods, we use
the medicines, we use the trees, and the natural habitat that
grow and live along the river. That is what provides for the
people of the Yavapai-Apache Nation that we use in these
ceremonies that are conducted by our young women and their
families. So, it is important that we continue to feed it and
it provide life. It provides life to the young maiden and
brings her up into a young woman to provide for her family, and
teaches her discipline, teaches her to be strong, and teaches
her in every possible way as she continues to grow, should she
choose to have a family.
Mr. Gallego. Thank you, Mr. Chairman, I yield back.
Mr. Bentz. I recognize Ms. Leger Fernandez for----
Ms. Leger Fernandez. Ten seconds?
Mr. Bentz. Yes, exactly.
Ms. Leger Fernandez. Mr. Chairman, I ask unanimous consent
to enter into the record testimony from Taos Pueblo Governor
Romero. They were intended to testify today, but were unable to
make it.
Mr. Bentz. Without objection.
[The prepared statement of Mr. Romero follows:]
Prepared Statement of Fred L. Romero, Governor of the Pueblo of Taos
on H.R. 6599
Good afternoon Chairman Bentz, Ranking Member Huffman and members
of the Committee. My name is Fred Romero and I am the Governor of Taos
Pueblo.
I am here today to discuss H.R. 6599, the ``Technical Corrections
to the Northwestern New Mexico Rural Water Projects Act, Taos Pueblo
Indian Water Rights Settlement Act, and Aamodt Litigation Settlement
Act''. My testimony addresses Section 3, entitled ``Authorization of
Payment of Adjusted Interest on the Taos Pueblo Water Development
Fund,'' and Section 5(a) entitled ``Section 509 of the Claims
Resolution Act of2010.''
1. Taos Pueblo
Taos Pueblo, Tau-Tah, the place of the Red Willows, is located in
North-Central New Mexico. Our people, Tauh tah Dainah, have lived in
the Taos Valley since time immemorial, and as the first users of the
Valley's water resources, constructed irrigation systems still in use
today.
We have over 2,700 enrolled members. Our land base is approximately
111,372 acres, including farmlands and range lands in the Taos Valley
and mountains with peaks reaching nearly 13,000 feet. Our Pueblo lands
include a culturally important and hydrologically unique wetland that
supports herbs, plants, clays, bison and other wildlife, and waterfowl
essential to our traditional and ceremonial way of life. This wetland
is known as the Taos Pueblo Buffalo Pasture.
Taos Pueblo is a National Historic Landmark and was designated a
World Heritage Site in recognition of our enduring living culture.
2. The Taos Pueblo Indian Water Rights Settlement Act, Title V of the
Claims Resolution Act of 2010 (P.L. 111-291)
In 2010, Congress enacted the Claims Resolution Act (P.L. 111-291),
including Title V, the Taos Pueblo Indian Water Rights Settlement Act
(``Settlement Act''). The Settlement Act recognized Taos Pueblo's
extensive water rights and authorized and approved the settlement
negotiated among Taos Pueblo and other parties to the adjudication of
the waters of the Taos Valley. The adjudication, entitled State of New
Mexico ex rel. State Engineer v. Abeyta and State of New Mexico ex rel
State Engineer v. Arrellano, was filed in the United States District
Court for the District of New Mexico in 1969. The adjudication includes
three tributaries of the Rio Grande in northern New Mexico, namely the
Rio Pueblo, Rio Lucero and Rio Hondo, or in our Tiwa language, the
Tuatah Bah-ah-nah, Bah bah til Bah ah nah, and Too-hoo Bah ah nah. Our
Blue Lake Wilderness Area is a major part of the watershed for the
streams in the adjudication.
The settlement was the product of decades of litigation and
negotiation. It ends centuries of disputes between the Pueblo and our
non-Indian neighbors. The Settlement Act authorized $36 million in
federal funding, with a State of New Mexico cost contribution in
addition to this amount, for a number of ``Mutual-Benefit Projects''
tailored to resolve complicated disputes over specific water issues.
Section 505(a) of the Settlement Act also established the Taos
Pueblo Water Development Fund to pay or reimburse costs incurred by the
Pueblo for:
1. acquiring water rights;
2. planning, permitting, designing, engineering, constructing,
reconstructing, replacing, rehabilitating, operating, or
repairing water production, treatment or delivery
infrastructure, on-farm improvements, or wastewater
infrastructure;
3. restoring, preserving and protecting the Buffalo Pasture,
including planning, permitting, designing, engineering,
constructing, operating, managing and replacing the Buffalo
Pasture Recharge Project;
4. administering the Pueblo's water rights acquisition program and
water management and administration system; and
5. watershed protection and enhancement, support of agriculture,
water related Pueblo community welfare and economic
development, and costs related to the negotiation,
authorization, and implementation of the Settlement
Agreement.
The Settlement Act authorized $50 million in a mandatory
appropriation to the Taos Pueblo Water Development Fund and authorized
appropriations of an additional $38 million, as adjusted by such
amounts as may be required due to increases since April I, 2007, in
construction costs, as indicated by engineering cost indices.
The settlement became final and enforceable on October 7, 2016 when
the Secretary of the Interior published her finding in the Federal
Register that all conditions precedent to enforceability had been
fulfilled.
3. Pre-Enforcement Date Investment Prohibition
Typically, Federal Indian water rights settlement legislation
authorizes Tribal settlement funds to be invested during the period of
time from when the funds are deposited until they can be utilized on
the settlement enforcement date. Yet our Settlement Act, and other
affected Indian water rights settlement legislation enacted in 2009 and
20 I 0, was unusual in that its directive to the Secretary to invest
the Taos Pueblo Water Development Fund specified ``upon the Enforcement
Date,'' instead of upon the deposit date. Section 505(c), Title V of
the Claims Resolution Act of 2010 (P.L. 111-291). The result was the
loss of millions of dollars in potential investment earning that could
otherwise have accrued during the nearly six years between enactment
and the Enforcement Date. But for the words ``upon the Enforcement
Date,'' those six years worth of investment earnings could have been
available for implementation of our settlement.
4. Sections 3 and S(a) of H.R. 6599, ``Authorization of Payment of
Adjusted Interest on the Taos Pueblo Water Development Fund''
Section 3 of H.R. 6599 provides a technical correction to recover
these lost investment earnings through an authorization to appropriate
$7,794,297.52 to the Taos Pueblo Water Development Fund. This technical
correction will facilitate implementation of the settlement and will
have substantial, tangible benefits to Taos Pueblo. The appropriations
authorized by the technical correction will be subject to the
authorized uses specified in Section 505(a) of the Settlement Act, such
as water rights management and administration, surface water irrigation
infrastructure improvements, and restoration of the Taos Pueblo Buffalo
Pasture wetland.
Section 5(a) ofH.R. 6599 makes clear that nothing in the
legislation affects the previous satisfaction of the conditions
precedent in Section 509(f)(2) of the Settlement Act, or affects the
validity of the Secretarial finding published in the Federal Register
on October 7, 2016, pursuant to Section 509(f)(l) of the Settlement
Act, that such conditions precedent were fully satisfied.
Taos Pueblo is in full support of this legislation. We believe the
Department of Interior supports Section 3 of H.R. 6599 based on our
conversations with them during the development of this bill and in
light of testimony for the Department of the Interior before the Senate
Committee on Indian Affairs in support of a similar technical amendment
for the Shoshone-Paiute Tribes' settlement legislation. In that
testimony, Assistant Secretary of Indian Affairs Bryan Newland noted
that ``prohibiting investment until an enforceability date is reached
is not common in Indian water rights settlements,'' and ``as a matter
of equity, [the Department] would support similar legislation to
resolve this same issue in the four other Indian water rights
settlements approved by Congress in 2009 and 2010.'' Our Taos Pueblo
settlement is one of the settlements.\1\
---------------------------------------------------------------------------
\1\ See S. Rept. 118-80--TECHNICAL CORRECTION TO THE SHOSHONE-
PAIUTE TRIBES OF THE DUCK VALLEY RESERVATION WATER RIGHTS SETTLEMENT
ACT OF 2023, S.Rept. 118-80, 118th Cong. (2024), at 3, notes 7 and 8,
https://www.congress.gov/congressional-report/118th-congress/senate-
report/80/1.
---------------------------------------------------------------------------
5. Conclusion
H.R. 6599 would correct an injustice in our original water
settlement legislation and would provide funding to help put our water
rights to use for the Taos Pueblo people. We ask that you support this
technical correction amendment and move the bill expeditiously.
Thank you for the opportunity to testify. I'm happy to answer any
questions from the Committee.
______
Mr. Bentz. The Chair recognizes himself for 5 minutes.
Mr. Palumbo, I have a question regarding operation and
maintenance. But before I get to that, the challenge, I
suppose, in all these negotiations is whether or not there is
enough water, particularly where so much time has passed since
the Winters case, and so many third parties, non-Indian
parties, have filed under state water rights frameworks, and
now generations have passed. And in some interesting way, if
that is the right word, you have multi-generation, non-Indian
folk relying upon water rights, and then tribal folks wondering
why the Federal Government hasn't gotten busy and done its job
to sort out their Winters rights.
So, you, the Bureau of Reclamation, are stuck in the
position of trying to help sort this out. In your opinion, as
you look at these various settlement agreements, is there
enough water?
And I know it is a broad question, and there are 12
agreements. There are lots of agreements. Give me your general
take on it.
Mr. Palumbo. Thank you, Chairman Bentz. Fundamentally, the
answer is yes.
As part of the settlement process, there are three distinct
teams that are established: an assessment team, a negotiation
team, and an implementation team. Those earlier teams, part of
the responsibilities they have is to determine if there is
enough water to meet the demands of the settlement that might
go into negotiation. There are studies that are conducted by
the Bureau of Reclamation, as well as USGS and other scientific
agencies to determine that enough water is available.
Also, as part of the settlement process in the negotiation,
should lower priority water that might be at risk of not being
available at any certain time, it is incumbent upon the United
States to communicate that clearly as a good negotiator and in
good faith that there is some water that might be of lower
priority that might not be available in certain years, and that
is part of the negotiation process.
But fundamentally, assessing if that water is available is
incumbent upon us. And yes, we do do that. And yes, I am
comfortable with the 12 settlements in front of us here this
morning and afternoon that it is available.
Mr. Bentz. Maybe another way of putting it is to say that
when it is not available, that money is used to paper over the
shortage. Is that a correct statement?
Mr. Palumbo. Can you repeat that? I am sorry.
Mr. Bentz. Maybe another way of saying it, if their water
is not available, money is used, United States money, is used
to paper over the shortage. Is that a correct statement?
Mr. Palumbo. I would say, as part of the negotiation, if
there were low-priority water, part of the settlement, that
some consideration for lower-priority water versus higher-
priority----
Mr. Bentz. What I am doing is giving you an opening to say,
as water diminishes, because that appears to be the case as it
becomes drier, the cost of these settlements goes up. That is
where I am really going with this question.
Mr. Palumbo. Oh, correct.
Mr. Bentz. Is that true?
Mr. Palumbo. That is true. When water becomes more scarce,
the dollar per acre-foot, so to speak, goes up for capital, and
the O&M, and the whole delivered project.
Mr. Bentz. Right. So, one of the reasons that we should be
moving forward with these agreements is that they become more
expensive the longer we wait. Is that a correct statement?
Mr. Palumbo. That is a correct statement for a number of
reasons. The one you identified----
Mr. Bentz. Right. Well, other than the ever-increasing cost
of infrastructure, what else? Less water? That is where I am
really going with this.
Mr. Palumbo. Yes. As the climate changes, aridification
progresses, there is less water available, time is----
Mr. Bentz. Well, how about an over-estimation of how much
water there actually was?
For example, the Colorado. Now, all of a sudden, we
suddenly realize it is not there. Is the government going to be
picking up the cost of that miscalculation somewhere inside
these agreements?
Mr. Palumbo. Yes. Fundamentally, it is a cost of
negotiating now based on what we believed 100 years ago might
be available, for example, in the Colorado River. It is not
materializing, so the need to work with a smaller amount of
water just inherently, from a supply and demand perspective----
Mr. Bentz. Let's hop ahead. Forgive me for cutting you off,
but I have another question for you.
The O&M costs that go with the infrastructure that is going
to be contemplated and ultimately constructed, do you, as an
agency, try to figure out how they are going to be paid?
Because the idea is that they would not be included in the
money generated by the Federal Government handed to anyone in
the tribal parts of these agreements.
Mr. Palumbo. Yes. As part of many water rights settlements,
economic development plans are part of that assessment. And we
have determined whether or not a period of time of O&M offset
is warranted in these particular cases. We did just determine
for a period of time until the customer base can grow large
enough to pay for the O&M costs of the project, so that is why
these trust funds were part of the settlements to defray for a
period of time the costs----
Mr. Bentz. I understand, and I appreciate that. It would be
helpful if you would provide us with the Department's estimate
of what the increasing cost might be each year. It doesn't have
to be precise. Maybe a general statement so that we have it
available as we are encouraging the Members of Congress to join
us in trying to reach a support for these settlement
agreements.
So, I want to thank everybody for being here and taking the
time to join us today. And these agreements, I have a long-term
understanding of how they work, and how much incredible effort
has been put in to try to put them together, I really do. And I
really, really appreciate all of you being here to try to help
move this forward.
With that, I thank all of you for your testimony and the
Members for the questions. The members of the Committee may
have some additional questions for the witnesses, and we will
ask you to respond to these in writing. Under Committee Rule 3,
members of the Committee must submit questions to the
Subcommittee Clerk by 5 p.m. Eastern Time on Friday, July 26.
The hearing record will be held open for 10 business days for
these responses.
Without objection, the Subcommittee stands adjourned.
[Whereupon, at 1:35 p.m., the Subcommittee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Prepared Statement of Mark Manoukian, St. Mary Rehabilitation Working
Group
on H.R. 7240
My name is Mark Manoukian. I live near Malta Montana and irrigate
alfalfa and grass hay with water from the St. Mary project and the Milk
River. Without water from the St. Mary project, the Milk River would
run dry 6 out of 10 years. I support passage of H.R. 7240 to repair the
St. Mary project.
Since 2003, I have been a member of and in 2014 became the Co-Chair
of the St. Mary Rehabilitation Working Group. This 15-citizen member
group comprises municipalities, irrigators, recreationist, and members
of the Fort Belknap and Blackfeet Tribes. This group was formed to
raise awareness of the potential loss of the Federal Irrigation System
managed by the Bureau of Reclamation. We have known since 2003 it was
in emanate danger of catastrophic failure. Our main goal was to
``Address the needs of the St. Mary project before it suffers a
catastrophic failure''.
The water I and 700 other family farms use travels from Glacier
Park through a 29-mile canal, which contains the St. Mary siphons and
Halls Coulee siphons. On June 17, 2024 the St. Mary siphon system
failed and water transfers to Fresno Reservoir halted. Water from
Fresno Reservoir provides drinking water to 18,000 people in Havre,
Chinook and Harlem, and irrigation water to 140,000 acres. We have the
ability to feed more than 1,00,000 people annually with this water.
As a member of the working group for 21 years I was keenly aware of
the damage that a broken siphon could do. This siphon failure deposited
more than 100,000 cubic yards of dirt from erosion from the 8-foot pipe
discharging 300 cubic feet per second of water into the St. Mary River.
H.R. 7240 not only settles the Federal part of the Fort Belknap
Tribal Water Compact; it will provide needed funding to fix the 110-
year-old St. Mary project.
One thing that is overlooked in the recent disaster is that through
the 1921 Order, which is the document that splits the water between the
US and Canada on the St. Mary River, the legal right of the US is to
divert 850 cubic feet per second during the irrigations season. In
2003, when we started the working group, due to loss of canal capacity,
through degradation, the project was only able to divert 700 cubic feet
per second. Today, this degraded system is only capable of transferring
600 cubic feet per second. Through our own neglect, St. Mary Canada
receives 250 cubic feet per second during the diversion season of US
water. This is enough water to irrigate 20,000 acres in Montana
annually.
Our cost share on this Federal Project is 75% for irrigators and
the Bureau of Reclamation contributes 25%. With a Safety of Dams repair
currently on Fresno Reservoir and the loss of the siphons, irrigation
cost for the 700 family farms is estimated to increase $1.5 and $5.41
per acre respectively, for less water. Water is not estimated to be
available until August of 2025. The loss of production will impact
20,000 head of cattle. Some farms may not be able to overcome these
mounting costs.
H.R. 7240 funding will be a game changer in providing much needed
repairs to the St. Mary system and modernizing our irrigation project
so we can use our legal entitled US water amount, 850 cubic feet per
second. Without immediate repairs to this 110-year-old system, the
communities of Havre, Chinook and Harlem will literally have no potable
water and 140,000 acres will be turned into to dryland farm ground.
I recommend passage of H.R. 7240 and thank the committee for this
time to testify on this important water project.
______
Questions Submitted for the Record to Marko Manoukian, Co-Chair, St.
Mary Rehabilitation Working Group
Questions Submitted by Representative Rosendale
Question 1. You have spent over 20 years working to provide these
necessary upgrades to the St. Mary system.
1a) What did that process look like, and why has it taken so long
to get these necessary fixes?
Answer. For the first 15 years we met monthly and sent
appropriations request to Congress, but most of the time Continuing
Resolutions prevented funding. On September 1, 2006 the Senate Energy
and Natural Resource Committee held a field hearing in Havre Montana.
https://www.energy.senate.gov/hearings/2006/9/hearing-87F595CE-90A3-
4243-8F72-00EFCE80BFDE. No federal action came from any of these
efforts. H.R. 7240 is the best chance for funding rehabilitation of the
St. Mary/Milk River project.
1b) What will the local economic impact be if this bill passes and
the St. Mary Canal receives the improvements included in this bill?
Answer. We could modernize the St. Mary project, increasing our
water flow 30% to our legal right of 850 cubic feet per second. The
18,000 people living in Havre, Chinook, Harley and Fort Belknap would
not have to ration water.
Question 2. This bill's main intention is to help settle Fort
Belknap's water rights. How does the St. Mary system come into play
with these rights and claims?
Answer. Page 31 of the State of Montana compact with the Fort
Belknap Tribe it states that the flow of water from the St. Mary
project ``is essential to the permanent success of the compact''. On
page 33 the compact further states if the St. Mary project suffer
permanent or long-term loss ``the Parties may seek a remedy in court .
. .'' effectively negating the compact.
Question 3. How has the recent failure at the St. Mary Canal
affected the local communities that rely on this system for their water
needs?
Answer. Right now, we will only irrigate half, 70,000 of the
140,000 acres due to the siphon collapse for a second irrigation in
2024. It is proposed that in 2025 we will have possibly a two-week
irrigation season in June. It takes 40 days to irrigate the Milk River
project once, so essentially no water in 2025. I have livestock, both
cattle and sheep. With the irrigation shortage and loss of production
in 2024 and in 2025, I plan to purchase hay from dryland farmers for
fall of 2025. Many of the 700 family farms may not be able to overcome
the production losses and added cast.
3a) The Bureau of Reclamation estimates that this system will not
be up and running again until the fall of 2025. What is the impact of
this on the communities affected?
Answer. It literally means that the 18,000 people in the towns of
Havre, Chinook, Harlem, and Fort Belknap Agency may not have domestic
water in the spring and summer of 2025. Production from the 140,000
acres will be close to Zero.
3b) Is there anywhere else the local communities can turn to meet
their water needs?
Answer. The towns have no alternate source of flowing water or well
water to access for domestic use. Currently, Haver has a ban on non-
essential water use and noted it is due to the siphon collapse on the
St. Mary project https://www.ci.havre.mt.us/. The Milk River basin is
closed, so drilling and irrigation wells is prohibited.
3c) Where will your community turn if the Milk River runs dry, as
you mentioned happens 6 out of every 10 years?
Answer. From Havre to Nashua, communities will shrink and
businesses and schools will disappear.
Question 4. As it currently stands, the local communities are
responsible for $34 million, with $26 million of that amount being
interest-bearing, for the repairs to the St. Mary Canal. How will this
financial burden affect the local communities?
Answer. As I mentioned in my testimony, the cost of the siphon
repair will be $5.41 per acre. The terms of the contract are not
finalized by the state, but this cost will be for 30 to 50 years. For
no water in the first year. It is not economically sustainable. This
funding does not address the canals degradation. We must address this
to restore our legal right to water, 850 cubic feet per second, and
that cost more money, maybe $150 million. So, the passage of H.R. 7240
is critical.
______
Submissions for the Record by Rep. Bentz
Colorado River Authority of Utah
Salt Lake City, UT
August 6, 2024
Hon. Cliff Bentz, Chairman
Hon. Jen Kiggans, Vice Chair
House Committee on Natural Resources
Subcommittee on Water, Wildlife and Fisheries
1324 Longworth House Office Building
Washington, DC 20515
Re: Testimony of the State of Utah on H.R. 8940, Northeastern Arizona
Indian Water Rights Settlement Act
Dear Chairman Bentz, Vice-Chair Kiggans and Members of the
Committee:
My name is Gene Shawcroft, and I serve as the Utah Colorado River
Commissioner. In this capacity, I am the Utah Governor's representative
on matters involving the Colorado River. Utah supports the efforts of
the settling parties to resolve the water rights claims of the Navajo
Nation, the Hopi Tribe, and the San Juan Southern Paiute Tribe through
negotiated settlements. The State successfully negotiated its own
settlement with the Navajo Nation in 2015, which was authorized by
Congress and signed into law by the President in 2021 (Navajo-Utah
Water Rights Settlement, PL 116-260). Currently, Utah and the Nation
are working closely on the implementation of the Navajo-Utah
Settlement. Notwithstanding our support for a full and equitable
resolution of the claims of these three sovereign Tribes, Utah has
several concerns regarding H.R. 8940, Northeastern Arizona Indian Water
Rights Settlement Act, which was heard by the Subcommittee on Water,
Wildlife and Fisheries on July 23, 2024. Accordingly, we request your
consideration of our testimony.
I. San Juan Southern Paiute Tribe Lands and Associated Water Rights
A key aspect of H.R. 8940 is the proposed establishment of a
reservation for the San Juan Southern Paiute Tribe. Utah is generally
supportive of the establishment of a reservation for the San Juan
Southern Paiute Tribe pursuant to the Treaty between the Tribe and the
Navajo Nation. Furthermore, it is the policy of the State to support
negotiation of federally reserved water right claims and to oppose any
designation of public lands that does not quantify associated federally
reserved water rights claims.\1\ Nevertheless, the State believes the
establishment of the reservation as described in H.R. 8940 may have
significant implications for Utah. As currently proposed, the San Juan
Southern Paiute reservation would contain two distinct, non-contiguous
parcels of land within the Navajo Nation identified as the ``Northern
Area'' and the ``Southern Area.'' While not explicit in H.R. 8940, the
legislation references a map \2\ showing that the Northern Area of the
proposed reservation is comprised of lands wholly within Utah. Utah is
concerned that the portion of the proposed reservation in Utah may
affect existing interests in land and water rights as well as other
resources in the state.
---------------------------------------------------------------------------
\1\ Utah Code Sec. 73-1-21(1)(c).
\2\ San Juan Southern Paiute Northern Area at Exhibit 3.1.146 of
the Settlement Agreement. See H.R. 8940 at Sec. 3(82).
Perhaps as a result of the exclusion of explicit references within
H.R. 8940 to Utah lands within the proposed reservation, the
legislation provides scant detail regarding water rights on the
Northern Portion of the proposed reservation. By contrast, H.R. 8940
goes into great detail on water rights for the Southern Area of the
proposed San Juan Southern Paiute Reservation in Arizona. Specifically,
H.R. 8940 fails to identify whether the Northern Area of the
reservation in Utah would be entitled to water rights, particularly
federally reserved water rights, or whether that portion of the
reservation would receive water service from the Navajo Nation under
the Navajo-Utah Settlement or from another entity.
While H.R. 8940 appears to attempt to limit its effect to water
rights within Arizona, Utah believes there is substantial ambiguity
surrounding water rights in Utah. The state of Utah is neither a party
to the settlement nor has the state been involved in discussions on the
establishment of the Tribe's reservation. Therefore, prior to further
Committee consideration of H.R. 8940, Utah would seek additional
clarity on the Northern Area of the proposed new reservation.
Specifically, Utah requests additional information on the potential for
water rights claims by the Tribe in the state and possible implications
of the establishment of the reservation for existing water rights,
interests in land and other public resources in Utah.
II. Utah State Engineer Jurisdiction
H.R. 8940 contemplates the diversion of Navajo Nation (Navajo) and
Hopi Tribe (Hopi) Upper Basin Colorado River Water (Upper Basin water)
in Utah and New Mexico for use in Arizona that derives from Arizona's
allocation under the 1948 Upper Colorado River Basin Compact (1948
Compact). However,
H.R. 8940 does not require approval by either state for such
diversions. Any diversion of water in Utah is subject to the regulation
by the Utah State Engineer, who has exclusive jurisdiction over the
use, diversion, and distribution of water in the state.\3\ Moreover,
pursuant to the 1948 Compact, any use of Upper Basin water ``shall not
interfere with the right or power of any signatory state to regulate
within its boundaries the appropriation, use and control of water.''
\4\ Accordingly, we request that H.R. 8940 be amended to clarify that
it does not preempt Utah law governing the regulation of water use or
contravene the 1948 Compact.
---------------------------------------------------------------------------
\3\ See Utah Code Sec. 73-2-1.
\4\ Article XV(b), Upper Colorado River Basin Compact.
---------------------------------------------------------------------------
III. Accounting
H.R. 8940 requires accounting for the delivery and use of both
Upper Basin and Lower Basin Colorado River water. However, the
legislation does not require accounting for Upper Basin water that is
not fully consumptively used by the Navajo or Hopi. In order to comply
with the terms of the 1922 Colorado River Compact,\5\ it is Utah's
position that any portion of the Upper Basin allocation that is not
fully consumptively used by either Tribe must be accounted for as
though it had passed Lee Ferry.
---------------------------------------------------------------------------
\5\ Article III(a), Colorado River Compact.
Moreover, H.R. 8940 states that any storage of Upper Basin water in
New Mexico reservoirs shall be credited against Upper Basin water in
the year in which the diversions for storage in the reservoirs occur.
It is not clear whether or how Upper Basin water stored in New Mexico
reservoirs pursuant to H.R. 8940 will be accounted for when that water
passes Lee Ferry. Clarification of these accounting issues is
fundamental to Utah's position on H.R. 8940.
IV. Proposed Place of Use of Upper Basin water
H.R. 8940 expressly authorizes the consumptive use of Upper Basin
water by the settling Tribes at any location within Arizona. Utah
supports this provision as it has been our longstanding position that
any Colorado River Basin state may use its allocation of Colorado River
water at any location within the geographic boundaries of its state. We
are concerned, however, that this language may create the inference
that the right to use Colorado River water anywhere within a particular
state is limited to the settling Tribes. We therefore request
additional language in the legislation confirming that any Colorado
River Basin state may use its Colorado River allocation within the
geographic boundaries of that state.
V. Secretarial Distribution of Upper Basin water
H.R. 8940 provides for contracts between the Secretary of Interior
(Secretary) and the Navajo and Hopi for the storage and delivery of
both Upper and Lower Basin water. The legislation further requires that
such contracts identify mechanisms for delivery of the water. Neither
the Secretary nor the Tribes have the authority to distribute water
within Utah. Rather, that authority resides exclusively with the Utah
State Engineer. Moreover, H.R. 8940 requires that water delivery
contracts for Navajo Upper Basin water shall identify one or more
points of diversion in Utah. Once again, any diversion of Upper Basin
water in Utah for use in Arizona is subject to the jurisdiction and
approval of the Utah State Engineer.
In summary, the state of Utah supports the efforts to secure a
fair, equitable, and final settlement of the claims to water in Arizona
for the Navajo, Hopi, and San Juan Southern Paiute Tribes. However,
before we can support the settlement embodied in H.R. 8940, the state
requests additional consultation on the issues we raise herein. We
welcome an opportunity to work collectively with the state of Arizona,
the Tribes and the other settling parties to identify solutions that
are consistent with state and federal law and that will ultimately
benefit the Colorado River Basin as a whole.
Very truly yours,
Gene Shawcroft, P.E.,
Colorado River Commissioner
State of Utah
______
Submissions for the Record by Rep. Grijalva
Statement for the Record
Becky Daggett, Mayor
City of Flagstaff
on H.R. 8940, Northeastern Arizona Indian Water Rights Settlement
Act of 2024
Chairman Westerman, Ranking Member Grijalva, Members of the
Committee and distinguished guests, thank you for the opportunity to
provide testimony supporting H.R. 8940, the Northeastern Arizona Indian
Water Rights Settlement Act of 2024 (NAIWRSA) for the settlement of
water rights claims of the Navajo Nation, the Hopi Tribe, and the San
Juan Southern Paiute Tribe, and for other purposes. The City of
Flagstaff (``Flagstaff'') is honored and excited to support the H.R.
8940, especially given that the City is home to many Tribal members.
Flagstaff and various other parties are actively engaged in
multiple court cases styled, In Re: The General Adjudication of All
Rights to Use Water in the Little Colorado River General Adjudication,
CV 6417 (``Adjudication''); and In re: Hopi Reservation HSR, Contested
Case No. CV 6417-203; and In re: Navajo Nation, Contested Case No. CV
6417-300. Through H.R. 8940, this historic settlement agreement would
resolve protracted and expensive litigation over the Tribes' water
rights claims among the Navajo Nation, the Hopi Tribe, the San Juan
Southern Paiute Tribe, the United States acting as trustee for the
Tribes, Flagstaff, Salt River Project, as well as other towns and
communities and private parties in the Little Colorado River
Adjudication. Likewise, H.R. 8940 would confirm certain surface water
rights and groundwater rights for non-federal parties, including
Flagstaff at Red Gap Ranch.
The Northeastern Arizona Indian Water Rights Settlement Agreement
(the ``Agreement'') dated as of May 9th, 2024, was unanimously approved
by the Hopi Tribe on May 20, 2024, and the Navajo Nation and the San
Juan Southern Paiute each unanimously approved the Agreement on May 23,
2024. Flagstaff determined it is in the best interests to enter into
the Agreement to end protracted and costly litigation related to these
water rights claims and unanimously approved the Agreement on July 2,
2024.
If approved by Congress, H.R. 8940 will provide funding for long-
overdue water supply projects for the Navajo Nation, the Hopi Tribe,
and the San Juan Southern Paiute. Flagstaff knows all too well that
access to potable water in the region is very costly because of
distance, challenging geology and depth to water, and naturally
occurring poor water quality. Federal funding for water supply projects
is fundamental to ensuring the stability of our Tribal communities and
the region. Hauling water is not a viable option for anyone, and
inadequate infrastructure among our Tribal Partners must change for the
better. Flagstaff supports H.R. 8940 because it will not only end
litigation, it will also ensure the success of the needed water supply
projects identified by our Tribal Partners for their respective
reservations.
When settlement negotiations first began in the mid-1990s,
Flagstaff's population was less than 50,000. As the largest community
in Northern Arizona, Flagstaff's population is approaching 80,000
residents and hosts more than six million visitors each year. Flagstaff
provides core services to its citizens, and water is among them. Over
the past 100 years, Flagstaff has actively engaged in providing
reliable and sustainable water supplies to meet current and future
demands. While growing, Flagstaff has reduced its water usage rate from
186 gallons per person to day to less than 90 gallons per person, per
day. Flagstaff consistently receives awards for its laudable water
management and reuse efforts, including EPA WaterSense awards, the
Wyland Foundation National Mayor's Challenge for Water Conservation,
and Gold status from the Alliance for Water Efficiency Utility
Leadership Board.
Conservation and reuse of water, while commendable and necessary,
cannot reasonably meet Flagstaff's core services of providing reliable
and sustainable supplies for future demands. Every year Flagstaff
continues to improve its water efficiency and continues to implement
and explore water reuse alternatives. Through water reuse alone,
Flagstaff was able to cut its potable water use by 20 percent. The City
remains an advocate for expanding reuse opportunities through potable
reuse alternatives as demonstrated through its Council-adopted policy
on reuse, community engagement, and participation in state-wide
initiatives. While the Arizona regulatory rules that prescribe how
potable reuse options are being developed, water reuse for Flagstaff
does not resolve the shortfall that will occur in the future. Water
efficiency prolongs water sources but does not create new water on
which Flagstaff can continue to rely on for future growth.
Additional water supplies are critically needed due to climate
variables, wildfires, water resiliency and water security for the
region. The extended drought and local wildfires have severely impacted
Flagstaff's ability to rely on local surface water supplies to meet
existing demands. Currently, 76 percent of Flagstaff's water supply is
located outside Flagstaff's service area on heavily forested USFS lands
that are at high risk to wildfires. In 2022 this became a reality for
Flagstaff when a fire damaged a portion of Flagstaff's water supply,
rendering it inaccessible until the waterline could be repaired.
Significantly, H.R. 8940 also recognizes Flagstaff's Regional Water
Supply Project at Red Gap Ranch (``Regional Water Supply Project''),
its existing wells and provides for points of access to the Regional
Water Supply Project. Flagstaff purchased Red Gap Ranch in 2005 to
secure a longer-term water future after drought triggered a city-wide
water emergency the previous year. The Regional Water Supply Project
would provide redundancy to the southwestern Navajo Nation and
Flagstaff's water supplies, further mitigating the risk of drought,
wildfire, and watershed degradation of Flagstaff's water resources. The
versatility of the Regional Water Supply Project will bring
opportunities along the I-40 corridor among lands within the Navajo
Nation, and also lands owned by the Hopi Tribe. The regional nature of
the project would afford long-term water security for the greater
Flagstaff area in the decades to come.
Flagstaff signed the Agreement with the understanding that
Paragraph 9.0 of the Agreement establishes two Buffer Zones; of which
the vast majority of Red Gap Ranch is located, and only one parcel of
Red Gap Ranch fee land is located outside of these Buffer Zones.
Paragraph 9.0 of the Agreement further provides for the right to use
groundwater from Existing Wells in the two Buffer Zones. Existing wells
located in Buffer Zone 1 and 2 as of the Effective Date will be
catalogued by the Arizona Department of Water Resources based on the
capacity of the well or well casing sizes provided in Table 1 of
subparagraph 9.4.1. In Buffer Zone 1 on Red Gap Ranch the City owns
eleven (11) Existing Wells with a total pumping capacity of 2,912 acre-
feet per year and in Buffer Zone 2 Flagstaff owns sixteen (16) Existing
Wells with the total pumping capacity of no less than 15,803 acre-feet
per year and up to 19,003 acre-feet per year. Paragraph 9.0 of the
Agreement also allows for the replacement of Existing Wells and for the
drilling of New Wells, subject to certain requirements. There are no
restrictions on withdrawals of groundwater from Existing Wells, or New
Wells drilled outside the Buffer Zones. Importantly, key waivers were
negotiated to limit future claims based on injury to water due to the
movement of salinity and naturally-occurring contaminants in the
aquifers from groundwater pumping. As part of Paragraph 9.0 of the
Agreement, the Arizona State Land Department agrees to coordinate with
Flagstaff regarding the drilling of wells on ASLD parcels in and around
Red Gap Ranch for the benefit of the Regional Water Supply Project.
The Regional Water Supply Project is a critical component of
Flagstaff's future water supply and necessary for the Flagstaff's water
resiliency and water security needs. The Regional Water Supply Project
is also an important component of the Agreement because Paragraph 12.0
allows the Navajo Nation to have access to the Regional Water Supply
Project by entering into Water Supply Contracts with Flagstaff as
described in the Agreement. Nothing in the Agreement prohibits
Flagstaff from entering into Water Supply Contracts with the Hopi
Tribe, ASLD, ADOT or others wanting access to the Regional Water Supply
Project.
The 35-mile alignment of the Regional Water Supply Project from Red
Gap Ranch will follow Interstate-40 within the ADOT Right-of-Way, and
then continue along county and Forest Service roads to reach Flagstaff.
The Regional Water Supply Project can deliver 16,000 acre-feet of
water. Importantly, the Regional Water Supply Project can be accessed
by the Navajo Nation, the Hopi Tribe, the Arizona State Land
Department, and others at the ADOT interchanges along the I-40 corridor
or at other mutually beneficial locations. Flagstaff is also exploring
an integrated approach to the Regional Water Supply Project, including
the installation of solar power generators to help achieve Flagstaff's
carbon neutrality vision. Through H.R. 8940, the Navajo Nation and Hopi
Tribe would have access to these critical water and energy sources.
Flagstaff acquired Red Gap Ranch, located approximately 35 miles
east of the City, for the purpose of developing its future municipal
water supply and to provide water resiliency and water security for its
residents, with 71 percent voter approval. Flagstaff has invested
millions in the Regional Water Supply Project to date and continues to
invest in its development by conducting engineering feasibility
studies, design plans, hydrology studies, including the drilling of no
less than 10 wells at Red Gap Ranch for municipal use that are also
recognized as part of H.R. 8940. The Regional Water Supply Project will
be critical to Flagstaff's future as there will likely be a reduction
to snowpack and recharge to Flagstaff's wellfields and would provide
for resiliency from catastrophic forest fires, and the security of a
long-term water supply.
A Phase II Feasibility Study for the Regional Water Supply Project
has been released and was discussed at Flagstaff's Water Commission
meeting on July 18, 2024. Flagstaff continues to identify, in
coordination with the Arizona Department of Transportation, and with
further anticipated input from regional participants including the
Navajo Nation, the Hopi Tribe and the Arizona State Land Department,
various Points of Access to the Regional Water Supply Project at ADOT
intersections along the Interstate 40 corridor, or at other mutually
beneficial locations.
To further the development of the Regional Water Supply Project,
Flagstaff is seeking funding on a cost-share basis. Although parties
may express concern about adding funding to the legislation for the
Regional Water Supply Project from Red Gap Ranch, it would be logical
to include such funding in the Congressional approval based on the
benefits that this truly Regional Water Supply Project brings.
The Red Gap Ranch Regional Water Supply Project is nearly shovel
ready and can supply precious water to key parties in this settlement.
Flagstaff's investment in the feasibility study and design based on the
I-40 alignment has put the Regional Water Supply Project substantially
advanced in the design of other projects. This is important because the
Regional Water Supply Project from Red Gap Ranch will also provide for
economic development opportunities for the Navajo Nation, the Hopi
Tribe and the State of Arizona (ASLD and ADOT) along the I-40 Corridor.
It is anticipated the Regional Water Supply Project could be built
in three segments at a total cost of $575 million. Flagstaff has
initiated outreach as part of the Phase III Feasibility Study to the
U.S. Bureau of Reclamation to engage the Navajo Nation, Hopi Tribe,
Arizona State Land Department and other stakeholders in a development
planning process for the Regional Water Supply Project. Flagstaff has
committed to cost-share an allocation of federal funding required to
develop the Regional Water Supply Project. Funding for the Regional
Water Supply Project will benefit the water supply of key parties in
the region.
In conclusion, we ask that the Committee add the critically
important Red Gap Regional Water Supply Project to H.R. 8940 during the
mark-up of this legislation to bring needed water to key parties in the
region. To be clear, this request from the City is not in competition
with funding among the Tribe's water supply projects, and should not be
construed as such. The Tribe's water supply projects are needed and
long-overdue. Rather, the City's request is for funding a complimentary
Regional Water Supply Project that will deliver real and supplemental
water supplies needed in the region.
The City strongly supports our Tribal Partners and other parties in
a unified effort to move H.R. 8940 forward as it will finally resolve
long, drawn out and expensive litigation while providing important
solutions that will secure our Tribal Partners and cities in
Northeastern Arizona with indispensable future water supplies.
As Mayor of Flagstaff, I thank you for the opportunity to provide
this testimony in support of this legislation.
______
Submissions for the Record by Rep. Hageman
State Engineer's Office
Cheyenne, Wyoming
July 22, 2024
Hon. Cliff Bentz, Chairman
Hon. Jared Huffman, Ranking Member
House Natural Resources Committee
Subcommittee on Water, Wildlife and Fisheries
1324 Longworth House Office Building
Washington, DC 20515
Hon. Harriet Hageman
Representative, State of Wyoming
Re: House Natural Resources Subcommittee on Water, Wildlife and
Fisheries July 23, 2024, Legislative Hearing on Northeastern
Arizona Indian Water Rights Settlement Act of 2024 (H.R. 8940)
Dear Representatives Bentz, Huffman, and Hageman:
My name is Brandon Gebhart, and I am the Wyoming State Engineer and
the Wyoming Governor's representative regarding the Colorado River. I
am writing on behalf of the State of Wyoming to express some of
Wyoming's concerns regarding the Northeastern Arizona Indian Water
Rights Settlement Act of 2024 (H.R. 8940). Wyoming supports the efforts
of Arizona, the Navajo Nation, the Hopi Tribe, the San Juan Southern
Paiute Tribe, and the United States to comprehensively settle the water
rights claims of those Tribes. However, various provisions of H.R. 8940
raise significant legal and technical concerns which will impact
Wyoming and the other Basin States \1\ which rely on the Colorado
River, and which must be resolved prior to approval of the settlement.
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\1\ The Colorado River and its tributaries supply water to the
Upper Division States of Colorado, New Mexico, Utah, and Wyoming, and
the Lower Division States of Arizona, California, and Nevada.
Collectively, the Basin States.
Tribal water right settlements are extremely complex and difficult
undertakings. The settlement offered by H.R. 8940 is certainly no
exception. In fact, the typical complexities and difficulties are
amplified due to the settlement's direct relation to elements of the
``Law of the River.'' The nexus between the proposed settlement and the
Law of the River, and the uncertainty about how provisions of the
settlement will operate under the Law of the River, form the bulk of
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Wyoming's concerns.
The Law of the River is a complex legal framework negotiated,
litigated, and developed over the last one hundred years. It apportions
the beneficial consumptive use of water from the Colorado River system
between the Upper and Lower Basins, among the seven Basin States, and
between the United States and Mexico. The Law of the River also
establishes the States' legal obligations, rights, and interests in the
Colorado River Basin. The Basin States, including Wyoming, rely on the
certainty of the Law of the River to effectuate and protect those
obligations, rights, and interests, and to supply water to millions of
people and millions of acres in the Colorado River Basin under various
hydrologic conditions.
Each Basin State, including Wyoming, is affected by, and has been
closely involved in, the development of the Law of the River. They have
negotiated interstate compacts, litigated over the management and
allocation of Colorado River water, and helped develop federal laws and
regulations concerning the Colorado River system. The Basin States have
also helped negotiate a water treaty with Mexico, implemented drought
mitigation and salinity control measures in the Basin, and carried out
environmental programs to recover endangered species endemic to the
Basin. Every aspect of Colorado River water management, allocation, and
operation affects the Basin States' interests.
The foundation of the Law of the River is the 1922 Colorado River
Compact. The 1922 Compact divides the water of the Colorado River
System between the Upper Basin and the Lower Basin. It apportions the
``exclusive beneficial consumptive use'' of water to each Basin, and
clearly separates the two Basins to accomplish its purposes. Dividing
the whole basin into two halves provides the fundamental framework for
much of the law which has followed, and plays a significant role
effectuating and protecting the Basin States' obligations, rights, and
interests.
The clear line of separation between the two Basins does not follow
state lines. The large majority of Arizona lies within the Lower Basin.
Arizona has a separate, exclusive right to use Colorado River water
within that portion. But a portion of Arizona's northeast corner lies
within the Upper Basin. Within that northeast corner, Arizona has the
exclusive right to use the 50,000 acre-feet of water per year
apportioned to it under the 1948 Upper Colorado River Basin Compact.
The settlement proposed by H.R. 8940 blurs the clear line of
separation between the two Basins and will therefore impact the Basin
States' obligations, rights, and interests. It provides for the ability
to use water apportioned to the Upper Basin within the Lower Basin. The
primary reason driving this outcome is simple-a large portion of the
affected Tribal reservations lie within the Lower Basin portion of
Arizona. But the proposed settlement goes even further. It would also
allow Upper Basin apportioned water to be used outside of the affected
Tribal reservations within the Lower Basin portion of Arizona, for
lease and exchange, delivered through non-tribal facilities to non
tribal uses. This marketing authorization ensures almost immediate use
and the following immediate impacts. Even further, the proposed
settlement provides for the delivery and accounting of Upper Basin
water within the Lower Basin portion of Arizona water without first
attempting to resolve the significant legal and technical issues the
unprecedented proposal clearly, and predictably, raises. These concerns
must be resolved, if possible, to avoid impacting Wyoming's
obligations, rights, and interests under the Law of the River.
Unless properly limited, the unprecedented proposed settlement also
promises to produce unintended consequences. There have been multiple
proposals throughout the years which attempted to blur the line which
separates the Upper and Lower Basins. The Basin States, except in
unique circumstances with clearly defined and agreed upon
limitations,\2\ have ultimately rejected those proposals. Many such
proposals still exist, and those who speculate in water would welcome a
dismantling of the protections provided to the Basin States' rights and
interests and their existing water uses. The circumstances associated
with the settlement proposed by H.R. 8940 are undoubtedly unique, as
are other circumstances in the Basin. But the proposed settlement, to
the extent it impacts the obligations, rights, and interests of the
Basin States, should be approved only if it can be adequately limited
by provisions developed through a consensus of the Basin States.
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\2\ See Section 10603 of the Northwestern New Mexico Rural Water
Projects Act, Public Law 111-11, March 30, 2009, 123 Stat. 1383.
In addition to the Law of the River concerns identified above, the
proposed settlement also raises a concern which is fundamental to
western water law. It appears to grant the Secretary of the Interior,
or the Tribes, unprecedented authority over state water resources. The
proposed settlement appears to grant the Secretary of the Interior
broad authority over water courses in Colorado, New Mexico, and Utah,
including the authority to transport and store the settlement water in
those states.\3\ It also appears to grant authority for the diversion
of the settlement water in New Mexico and Utah.\4\ Colorado, New
Mexico, and Utah are not parties to the settlement, and it does not
appear they have agreed to those settlement provisions. Unlike the
situation in the Lower Basin, the Secretary of the Interior is not the
water master in the Upper Basin. By its terms, the provisions of 1948
Upper Colorado River Basin Compact, which apportions the settlement
water to Arizona, cannot interfere with the right of any state ``to
regulate within its boundaries the appropriation, use and control of
water[.]'' \5\ Additionally, beginning more than one hundred years ago,
Congress has deferred to state water law as embodied in Section 8 of
the Reclamation Act, Section 10 of the Federal Power Act, Section
lOl(g) and lOl(b) of the Clean Water Act, and a myriad of other federal
statutes. Any weakening of the deference to state water law would be
inconsistent with over a century of cooperative federalism and a threat
to water rights and water rights administration in all western states.
Wyoming strongly opposes any weakening of this long-standing federal
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deference to state water law.
\3\ For example, Section 6(f) of H.R. 8940.
\4\ For example, Section 6(b)(3)(a)(i) of H.R. 8940.
\5\ Article XV(b), Upper Colorado River Basin Compact.
Wyoming supports the efforts to complete the Tribal water rights
settlement embodied in H.R. 8940. But, for the reasons outlined above,
Wyoming cannot support H.R. 8940 as written. The complicated issues
related to the Law of the River can only be resolved through consensus
agreement of all the Basin States. Wyoming is willing and ready to work
with the Basin States, the Tribes, congressional staffers, and Members
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of Congress to explore solutions which adequately address those issues.
With best regards,
Brandon Gebhart, P.E.,
Wyoming State Engineer
______
Submissions for the Record by Rep. Schweikert
Statement for the Record
Leslie A. Meyers
Associate General Manager and Chief Water Resources
and Services Executive
Salt River Valley Water Users' Association and Salt River Project
Agricultural Improvement and Power District
H.R. 8949, The Yavapai-Apache Nation Water Rights Settlement Act of
2024
Chairman Bentz, Ranking Member Huffman, and members of the
Subcommittee:
Thank you for the opportunity to submit testimony in support of
H.R. 8949, the Yavapai-Apache Nation Water Rights Settlement Act of
2024. My name is Leslie A. Meyers. I am the Associate General Manager
and Chief Water Resources and Services Executive at Salt River Project
(``SRP''), the oldest multi-purpose federal reclamation project,
serving the Phoenix, Arizona metropolitan area.
The Yavapai-Apache Nation Water Rights Settlement Agreement
provides for the importation of water from C.C. Cragin Dam and
Reservoir, a water pipeline and water treatment system, an in-stream
flow right for the Verde River and the confirmation of the Nation's
existing rights, local underground water, and an existing allocation
from the Central Arizona Project (``CAP''). H.R. 8949 would authorize
the settlement, provide funding for water infrastructure necessary to
implement the settlement, and set aside the water supplies for use by
the Nation and potentially other communities in Yavapai County.
SRP proudly supports the passage of H.R. 8949 to make the
settlement a reality.
History of Salt River Project
The Secretary of the Interior (``Secretary'') authorized the
construction of the Salt River Federal Reclamation Project as one of
the first projects under the Reclamation Act of 1902. The Salt River
Valley Water Users' Association, an Arizona Territorial corporation,
was organized in 1903 by landowners in the Salt River Valley to
contract with the federal government for the building of Theodore
Roosevelt Dam on the Salt River, located some 80 miles northeast of
Phoenix. In exchange for pledging their land as collateral for the
federal loans to construct Roosevelt Dam, which loans have long since
been fully repaid, landowners in the Salt River Valley received the
right to water stored behind the dam.
In 1905, in connection with the formation of the Association, a
lawsuit entitled Hurley v. Abbott, et al., was filed in the District
Court of the Territory of Arizona. The purpose of this lawsuit was to
determine the priority and ownership of water rights in the Salt River
Valley to the natural flow of the Salt and Verde rivers and to provide
for their orderly administration. The decree entered by Judge Edward
Kent in 1910 adjudicated those water rights, provided water supply
certainty to existing water users and, in addition, paved the way for
the construction of additional water storage reservoirs by SRP on the
Salt and Verde Rivers in Central Arizona.
Today, SRP operates six dams and reservoirs on the Salt and Verde
Rivers in the Gila River Basin, one dam and reservoir on East Clear
Creek in the Little Colorado River Basin, and 1,300 miles of canals,
laterals, ditches and pipelines to deliver water to approximately 400
square miles of land in the greater Phoenix area. The dam and reservoir
system can store approximately 2.3 million acre-feet of water runoff
from the Salt and Verde River and East Clear creek systems, making SRP
the largest raw water provider in the Phoenix Metropolitan area. SRP
holds the rights to water stored in these reservoirs, and for the
downstream uses they supply, pursuant to the state law doctrine of
prior appropriation, as well as federal law. SRP is also the third
largest not-for-profit community based public power utility in the
country, providing reliable, affordable, and sustainable electricity to
nearly 3 million people in Arizona. SRP has a diverse energy portfolio
that includes nuclear, solar and wind, natural gas, battery storage,
coal, geothermal and hydropower.
C.C. Cragin Dam and Reservoir (``C.C. Cragin Reservoir'') is an
important feature of the Salt River Federal Reclamation Project.
Located approximately 25 miles north of the Town of Payson, C.C. Cragin
Reservoir stores water from a 71-square-mile watershed on East Clear
Creek, a tributary to the Little Colorado River. SRP acquired C.C.
Cragin Reservoir from Phelps Dodge Corporation as part of the Gila
River Indian Community Water Rights Settlement. Title II of the Arizona
Water Settlements Act, P.L. 108-451, specifies that up to 3,500 acre-
feet of the water stored in Cragin Reservoir will be made available for
municipal and domestic uses in northern Gila County at no cost to SRP
or the Bureau of Reclamation. Water from C.C. Cragin Reservoir is
crucial to meet the municipal demands of the Town of Payson and other
nearby communities, who previously relied solely upon the area's meager
groundwater resources.
The Yavapai-Apache Nation Water Rights Settlement Agreement Secures the
Nation's Future and Brings Renewable Water Resources to the
Verde Valley, Reducing Reliance Upon Groundwater.
The Yavapai-Apache Nation is a federally recognized Native American
tribe consisting of two distinct tribal cultures, each with their own
traditions and languages: the Yavapai people and the Apache people.
Together, their aboriginal homeland spans more than 16,000 square miles
in the heart of central Arizona. The history of the Yavapai and Apache
peoples tragically resulted in their people being force-marched to the
San Carlos Apache Indian Reservation in 1875, where they were confined
for the next 25 years. After their imprisonment ended, the people who
called the Verde River their homeland returned to the Verde Valley and,
with the assistance of the United States, formed the foundations of the
Yavapai Apache Nation that remains today, demonstrating their
resilience and deep connection to their homeland and the Verde River.
The resolution of the Yavapai-Apache Nation's water rights claims
broadly benefits both the tribal communities receiving water and
funding, and water users throughout the Verde Valley. The Nation's
settlement will bring water certainty to their community and provide an
avenue for stable, renewable water supplies and strong, cooperative
water stewardship tools in the Verde Valley. The new supplies will also
reduce the dependency of the Nation and invested local communities on
groundwater--promoting aquifer health and reducing impacts on the flows
of the Verde River.
Resolving the Nation's claims also constitutes a monumental step
forward in providing certainty regarding available water supplies for
users in the Verde Valley, as well as downstream users of Verde River
water in the Phoenix metropolitan area. The Gila River Adjudication
includes over 7,000 water rights claimants within the Verde River
Watershed alone. The Nation's claims to Verde River water have been a
significant concern to municipalities and landowners in the Verde
Valley, where water resources are increasingly scarce. In securing this
settlement, the Nation agrees to waive its claims in the Adjudication,
and to participate in those proceedings narrowly. The settlement is the
culmination of decades of work to resolve the Nation's water rights and
is a win-win solution for the Nation, the other parties involved, and
the Verde River.
Settlement Details
Water Infrastructure
Legislation to enact the settlement will authorize and fund the
construction of a 60-mile pipeline from C.C. Cragin Reservoir to the
Verde Valley (``Pipeline Project''), delivering water to the Nation and
providing a pathway for local communities to secure a renewable water
supply for their water portfolios which would assist with sustaining
the Nation's instream flow rights and the Verde River. SRP would
operate the pipeline as part of the Salt River Federal Reclamation
Project. Neighboring communities participating in the Pipeline Project
would bear their proportionate share of the pipeline's operation and
maintenance expenses, thereby reducing the Nation's proportionate share
of these costs. The legislation also would facilitate the buildout of
the Nation's treatment and drinking water system, which could also be
utilized by entities receiving C.C. Cragin Reservoir water. The
infrastructure will unlock water resiliency opportunities for a diverse
range of stakeholders. The legislation also amends Title II of the
Arizona Water Settlements Act, P.L. 108-451, to make water from C.C.
Cragin Reservoir available for municipal and domestic use by
communities in Yavapai County to reduce reliance on groundwater, assist
in reducing the cost of water delivery to the YAN, and provide a
renewable water supply to the Verde Valley.
Nation's Water Sources
Water sources that make up the Nation's water budget, which are
defined in the settlement, encompass a diverse portfolio to meet the
Nation's present and future needs. Those sources include:
1. Water supplies from C.C. Cragin Reservoir delivered through the
to-be-constructed Pipeline Project;
2. The Nation's existing rights to Verde River water from the OK
Ditch, Verde Ditch, and pursuant to the Daley Decree for
irrigation and watering of livestock;
3. A right to instream flows of the Verde River on the Reservation
for religious and cultural uses;
4. Limited underground water for use by the Nation; and
5. Access to the Nation's existing allocation of CAP Indian Priority
Water.
Gila Adjudication Considerations
The Gila River General Stream Adjudication has now reached half a
century in duration; absent a settlement, a final resolution of the
Nation's water rights in the Adjudication proceedings would take many
years more, at great expense to the Nation and others in the Verde
Valley, prolong water supply uncertainty in the Verde Valley, and
hinder the long-term economic well-being of the Nation, the settlement
parties, local communities, and water users throughout the watershed.
As a mutually beneficial alternative, the Nation through this
settlement will waive its outstanding claims for water rights and
damages to water rights in the Gila River Adjudication when the
settlement becomes enforceable in exchange for the delivery of water
from C.C. Cragin Reservoir and other rights decreed in the settlement.
The Nation then only participates in the Adjudication proceedings
relating to injury to its water rights.
Thank you for your consideration of these views as we work to bring
this important settlement to pass.
______
American Rivers
Washington, DC
July 23, 2024
Hon. Cliff Bentz, Chairman
Hon. Jared Huffman, Ranking Member
House Natural Resources Committee
Subcommittee on Water, Wildlife and Fisheries
1324 Longworth House Office Building
Washington, DC 20515
Re: Support of H.R. 8949, Yavapai Apache Nation Settling its Water
Rights in the State of Arizona
Dear Chairman Bentz, Ranking Member Huffman, and Members of the
Subcommittee:
American Rivers is pleased to submit a letter of support to the
House Natural Resources Committee for the Yavapai Apache Nation's (YAN)
proposed water settlement. American Rivers and YAN have developed a
deep and supportive relationship through collaboration on the
conservation of the Verde River in central Arizona. We support the
Nation's need and right, as a sovereign, to negotiate a permanent water
settlement with the State of Arizona and the United States. Indeed,
this is necessary in order to provide for a ``permanent homeland'' for
the Nation.
Since 1973, American Rivers has protected wild rivers, restored
damaged rivers, and conserved clean water for people and nature. With
headquarters in Washington, DC. and 355,000 supporters, members, and
volunteers across the country, we are the most trusted and influential
river conservation organization in the United States, delivering
solutions for a better future. On behalf of AR, I would like to thank
Chairman Bruce Westerman and Ranking Member Raul Grijalva for your
leadership to conserve rivers, improve clean water access, and
safeguard public drinking water supplies now and into the future.
Native Nations are key partners in this shared work, and YAN in
particular is a valued and trusted partner of American Rivers. In
addition to our desire for the Nation to have all of the resources that
it needs in order to flourish into the future, we appreciate the steps
that it took in order to protect the Verde River and local groundwater
in the details of its proposed water settlement. This exemplifies the
forward-thinking nature of the Nation and its long-standing
relationship to water in an arid region.
Thank you for your consideration of our testimony.
Sincerely,
Tom Kiernan,
President and CEO
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