[Congressional Record Volume 170, Number 115 (Thursday, July 11, 2024)]
[Senate]
[Pages S4590-S4594]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 2268. Mr. HEINRICH submitted an amendment intended to be proposed
by him to the bill S. 4638, to authorize appropriations for fiscal year
2025 for military activities of the Department of Defense, for military
construction, and for defense activities of the Department of Energy,
to prescribe military personnel strengths for such fiscal year, and for
other purposes; which was ordered to lie on the table; as follows:
At the end, add the following:
DIVISION E--OHKAY OWINGEH RIO CHAMA WATER RIGHTS SETTLEMENT
SEC. 5001. SHORT TITLE.
This division may be cited as the ``Ohkay Owingeh Rio Chama
Water Rights Settlement Act of 2024''.
SEC. 5002. PURPOSES.
The purposes of this division are--
(1) to achieve a fair, equitable, and final settlement of
all claims to water rights in the Rio Chama Stream System in
the State for--
(A) Ohkay Owingeh; and
(B) the United States, acting as trustee for Ohkay Owingeh;
(2) to authorize, ratify, and confirm the Agreement entered
into by Ohkay Owingeh, the State, and various other parties
to the extent that the Agreement is consistent with this
division;
(3) to authorize and direct the Secretary--
(A) to execute the Agreement; and
(B) to take any other actions necessary to carry out the
Agreement in accordance with this division; and
(4) to authorize funds necessary for the implementation of
the Agreement and this division.
SEC. 5003. DEFINITIONS.
In this division:
(1) Adjudication.--The term ``Adjudication'' means the
general stream adjudication of water rights in the Rio Chama
Stream System entitled ``State of New Mexico ex rel. State
Engineer v. Aragon'', Civil No. 69-CV-07941-KWR/KK, pending,
as of the date of enactment of this Act, in the United States
District Court for the District of New Mexico.
(2) Agreement.--The term ``Agreement'' means--
(A) the document entitled ``Ohkay Owingeh Rio Chama Water
Rights Settlement'' and dated July 5, 2023, and the exhibits
attached thereto; and
(B) any amendment to the document referred to in
subparagraph (A) (including an amendment to an exhibit
thereto) that is executed to ensure that the Agreement is
consistent with this division.
(3) Bosque.--The term ``bosque'' means a gallery forest
located along the riparian floodplain of a stream, riverbank,
or lake.
(4) City of espanola.--The term ``City of Espanola'' means
a municipal corporation of the State.
(5) Enforceability date.--The term ``Enforceability Date''
means the date described in section 5008.
(6) Ohkay owingeh; pueblo.--The terms ``Ohkay Owingeh'' and
``Pueblo'' mean the body politic and federally recognized
Indian nation.
(7) Partial final judgment and decree.--The term ``Partial
Final Judgment and Decree'' means a final or interlocutory
partial final judgment and decree entered by the United
States District Court for the District of New Mexico with
respect to the water rights of Ohkay Owingeh in the Rio Chama
Stream System--
(A) that is substantially in the form described in the
Agreement, as amended to ensure consistency with this
division; and
(B) from which no further appeal may be taken.
(8) Pueblo grant.--The term ``Pueblo Grant'' means the land
recognized and confirmed by the Federal patent issued to
Ohkay Owingeh (then known as the ``Pueblo of San Juan'')
under the Act of December 22, 1858 (11 Stat. 374, chapter V).
(9) Pueblo land.--The term ``Pueblo Land'' means any real
property that is--
(A) held by the United States in trust for Ohkay Owingeh
within the Rio Chama Stream System;
(B) owned by the Pueblo within the Rio Chama Stream System
before the Enforceability Date; or
(C) acquired by the Pueblo within the Rio Chama Stream
System on or after the Enforceability Date if the real
property is located--
(i) within the exterior boundaries of the Pueblo Grant; or
(ii) within the exterior boundaries of any territory set
aside for the Pueblo by law, Executive order, or court
decree.
(10) Pueblo water rights.--The term ``Pueblo Water Rights''
means the water rights of Ohkay Owingeh in the Rio Chama
Stream System--
(A) as identified in the Agreement and section 5005; and
(B) as confirmed in the Partial Final Judgment and Decree.
(11) Rio chama stream system.--The term ``Rio Chama Stream
System'' means the Rio Chama surface water drainage basin
within the State, as illustrated in Exhibit A to the
Agreement.
(12) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(13) Signatory acequia.--The term ``Signatory Acequia''
means an acequia that is a signatory to the Agreement.
(14) State.--The term ``State'' means the State of New
Mexico.
(15) Trust fund.--The term ``Trust Fund'' means the Ohkay
Owingeh Water Rights Settlement Trust Fund established under
section 5006(a).
SEC. 5004. RATIFICATION OF AGREEMENT.
(a) Ratification.--
(1) In general.--Except as modified by this division, and
to the extent that the Agreement does not conflict with this
division, the Agreement is authorized, ratified, and
confirmed.
(2) Amendments.--If an amendment to the Agreement, or to
any exhibit to the Agreement requiring the signature of the
Secretary, is executed in accordance with this division to
make the Agreement consistent with this division, the
amendment is authorized, ratified, and confirmed.
(b) Execution.--
(1) In general.--To the extent the Agreement does not
conflict with this division, the Secretary shall execute the
Agreement, including all exhibits thereto or parts of the
Agreement requiring the signature of the Secretary.
[[Page S4592]]
(2) Modifications.--Nothing in this division prohibits the
Secretary, after execution of the Agreement, from approving
any modification to the Agreement, including an exhibit to
the Agreement, that is consistent with this division, to the
extent that the modification does not otherwise require
congressional approval under section 2116 of the Revised
Statutes (25 U.S.C. 177) or any other applicable provision of
Federal law.
(c) Environmental Compliance.--
(1) In general.--In implementing the Agreement and this
division, the Secretary shall comply with--
(A) the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.);
(B) the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.), including the implementing regulations
of that Act; and
(C) all other applicable Federal environmental laws and
regulations.
(2) Compliance and coordination.--
(A) In general.--In implementing the Agreement and this
division, the Pueblo shall prepare any necessary
environmental documents consistent with--
(i) the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.);
(ii) the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.), including the implementing regulations
of that Act; and
(iii) all other applicable Federal environmental laws and
regulations.
(B) Authorizations.--The Secretary shall--
(i) independently evaluate the documentation required under
subparagraph (A); and
(ii) be responsible for the accuracy, scope, and contents
of that documentation.
(C) Coordination with army corps of engineers.--For any
bosque restoration or improvement project carried out by the
Pueblo with funds appropriated under this division, the
Pueblo shall coordinate with the Corps of Engineers to ensure
that work on the project shall not interfere with or
adversely affect any authorized Federal project that is under
the jurisdiction and authority of the Corps of Engineers.
(3) Effect of execution.--The execution of the Agreement by
the Secretary under this section shall not constitute a major
Federal action under the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.).
(4) Costs.--Any costs associated with the performance of
the compliance and coordination activities under this
subsection shall be paid from funds deposited in the Trust
Fund, subject to the condition that any costs associated with
the performance of Federal approval or other review of that
compliance work or costs associated with inherently Federal
functions shall remain the responsibility of the Secretary,
with the exception that costs for review of bosque
restoration or improvement projects by the Corps of Engineers
described in paragraph (2)(C) shall be paid from funds
deposited in the Trust Fund.
SEC. 5005. PUEBLO WATER RIGHTS.
(a) Trust Status of the Pueblo Water Rights.--The Pueblo
Water Rights shall be held in trust by the United States on
behalf of Ohkay Owingeh in accordance with the Agreement and
this division.
(b) Forfeiture and Abandonment.--
(1) In general.--The Pueblo Water Rights shall not be
subject to loss through non-use, forfeiture, abandonment, or
other operation of law.
(2) State law-based water rights.--State-law based water
rights acquired by Ohkay Owingeh, or by the United States on
behalf of Ohkay Owingeh, after the date for inclusion in the
Partial Final Judgment and Decree, shall not be subject to
forfeiture, abandonment, or permanent alienation from the
time they are acquired.
(c) Use.--Any use of the Pueblo Water Rights shall be
subject to the terms and conditions of the Agreement and this
division.
(d) Authority of the Pueblo.--
(1) In general.--Ohkay Owingeh may allocate, distribute,
and lease the Pueblo Water Rights for use on Pueblo Land in
accordance with the Agreement, this division, and applicable
Federal law, including the Act of August 9, 1955 (25 U.S.C.
415 et seq.) (commonly known as the ``Long-Term Leasing
Act'').
(2) Use off pueblo land.--
(A) In general.--Ohkay Owingeh may allocate, distribute,
and lease the Pueblo Water Rights for use off Pueblo Land in
accordance with the Agreement, this division, and applicable
Federal law, subject to the approval of the Secretary.
(B) Maximum term of leases.--The maximum term of any lease,
including all renewals, under this paragraph shall not exceed
99 years.
(e) Administration.--
(1) No alienation.--The Pueblo shall not permanently
alienate any portion of the Pueblo Water Rights.
(2) Purchases or grants of land from indians.--An
authorization provided by this division for the allocation,
distribution, leasing, or other arrangement entered into
pursuant to this division shall be considered to satisfy any
requirement for authorization of the action required by
Federal law.
(3) Prohibition on forfeiture.--The non-use of all or any
portion of the Pueblo Water Rights by any water user shall
not result in the forfeiture, abandonment, relinquishment, or
other loss of all or any portion of the Pueblo Water Rights.
SEC. 5006. SETTLEMENT TRUST FUND.
(a) Establishment.--The Secretary shall establish a trust
fund, to be known as the ``Ohkay Owingeh Water Rights
Settlement Trust Fund'', to be managed, invested, and
distributed by the Secretary and to remain available until
expended, withdrawn, or reverted to the general fund of the
Treasury, consisting of the amounts deposited in the Trust
Fund under subsection (b), together with any investment
earnings, including interest, earned on those amounts for the
purpose of carrying out this division.
(b) Deposits.--The Secretary shall deposit in the Trust
Fund the amounts made available pursuant to section 5007(a).
(c) Management and Interest.--
(1) Management.--On receipt and deposit of funds into the
Trust Fund under subsection (b), the Secretary shall manage,
invest, and distribute all amounts in the Trust Fund in a
manner that is consistent with the investment authority of
the Secretary under--
(A) the first section of the Act of June 24, 1938 (25
U.S.C. 162a);
(B) the American Indian Trust Fund Management Reform Act of
1994 (25 U.S.C. 4001 et seq.); and
(C) this subsection.
(2) Investment earnings.--In addition to the amounts
deposited into the Trust Fund under subsection (b), any
investment earnings, including interest, earned on those
amounts held in the Trust Fund are authorized to be used in
accordance with subsections (e) and (g).
(d) Availability of Amounts.--
(1) In general.--Amounts appropriated to, and deposited in,
the Trust Fund, including any investment earnings (including
interest) earned on those amounts, shall be made available to
Ohkay Owingeh by the Secretary beginning on the
Enforceability Date, subject to the requirements of this
section, except for funds to be made available to Ohkay
Owingeh pursuant to paragraph (2).
(2) Use of funds.---Notwithstanding paragraph (1), not more
than $100,000,000 of the amounts deposited in the Trust Fund,
including any investment earnings, including interest, earned
on those amounts, shall be available to Ohkay Owingeh for the
following uses on the date on which the amounts are deposited
in the Trust Fund:
(A) Diversions of surface water and groundwater to the Rio
Chama bosque for immediate and essential restoration and
maintenance of the bosque.
(B) Fulfillment of the contribution of the Pueblo under the
Agreement for improvements to senior acequias on Pueblo Land
supplying water to the Pueblo and non-Indians.
(C) Establishment and operation of the water rights
management administrative department of the Pueblo.
(D) Acquisition of water rights.
(E) Development of water infrastructure plans, preparing
environmental compliance documents, and water project
engineering and construction.
(e) Withdrawals.--
(1) Withdrawals under the american indian trust fund
management reform act of 1994.--
(A) In general.--The Pueblo may withdraw any portion of the
amounts in the Trust Fund on approval by the Secretary of a
Tribal management plan submitted by the Pueblo in accordance
with the American Indian Trust Fund Management Reform Act of
1994 (25 U.S.C. 4001 et seq.).
(B) Requirements.--In addition to the requirements under
the American Indian Trust Fund Management Reform Act of 1994
(25 U.S.C. 4001 et seq.), the Tribal management plan under
subparagraph (A) shall require that the Pueblo shall spend
all amounts withdrawn from the Trust Fund, and any investment
earnings (including interest) earned on those amounts through
the investments under the Tribal management plan, in
accordance with this division.
(C) Enforcement.--The Secretary may carry out such judicial
and administrative actions as the Secretary determines to be
necessary to enforce the Tribal management plan under
subparagraph (A) to ensure that amounts withdrawn by the
Pueblo from the Trust Fund under that subparagraph are used
in accordance with this division.
(2) Withdrawals under expenditure plan.--
(A) In general.--Ohkay Owingeh may submit to the Secretary
a request to withdraw funds from the Trust Fund pursuant to
an approved expenditure plan.
(B) Requirements.--To be eligible to withdraw amounts under
an expenditure plan under subparagraph (A), the Pueblo shall
submit to the Secretary an expenditure plan for any portion
of the Trust Fund the Pueblo elects to withdraw pursuant to
that subparagraph, subject to the condition that the amounts
shall be used for the purposes described in this division.
(C) Inclusions.--An expenditure plan under subparagraph (A)
shall include a description of the manner and purpose for
which the amounts proposed to be withdrawn from the Trust
Fund will be used by Ohkay Owingeh, in accordance with this
subsection and subsection (g).
(D) Approval.--The Secretary shall approve an expenditure
plan submitted under subparagraph (A) if the Secretary
determines that the plan--
(i) is reasonable; and
(ii) is consistent with, and will be used for, the purposes
of this division.
(E) Enforcement.--The Secretary may carry out such judicial
and administrative actions as the Secretary determines to be
necessary to enforce an expenditure plan to ensure that
amounts disbursed under this
[[Page S4593]]
paragraph are used in accordance with this division.
(f) Effect of Section.--Nothing in this section gives Ohkay
Owingeh the right to judicial review of a determination of
the Secretary relating to whether to approve a Tribal
management plan under paragraph (1) of subsection (e) or an
expenditure plan under paragraph (2) of that subsection,
except under subchapter II of chapter 5, and chapter 7, of
title 5, United States Code (commonly known as the
``Administrative Procedure Act'').
(g) Uses.--The Trust Fund may only be used for the
following purposes:
(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 Pueblo
community welfare and economic development, and costs
relating to implementation of the Agreement.
(4) The management and administration of any water rights
of the Pueblo.
(5) Ensuring environmental compliance in the development
and construction of projects under this division.
(h) Liability.--The Secretary and the Secretary of the
Treasury shall not be liable for the expenditure or
investment of any amounts withdrawn from the Trust Fund by
the Pueblo under paragraph (1) or (2) of subsection (e).
(i) Expenditure Reports.--Ohkay Owingeh shall annually
submit to the Secretary an expenditure report describing
accomplishments and amounts spent from use of withdrawals
under a Tribal management plan or an expenditure plan under
paragraph (1) or (2) of subsection (e), as applicable.
(j) No Per Capita Distributions.--No portion of the Trust
Fund shall be distributed on a per capita basis to any member
of Ohkay Owingeh.
(k) Title to Infrastructure.--Title to, control over, and
operation of any project constructed using funds from the
Trust Fund shall remain in Ohkay Owingeh, except that title
to projects that are improved with funds from the Trust Fund
for the mutual benefit of the Pueblo and non-Indians, on
property owned by non-Indians, shall remain with the
underlying non-Indian owner.
(l) Operation, Maintenance, and Replacement.--All
operation, maintenance, and replacement costs of any project
constructed using funds from the Trust Fund shall be the
responsibility of Ohkay Owingeh.
SEC. 5007. FUNDING.
(a) Mandatory Appropriations.--Out of any funds in the
Treasury not otherwise appropriated, the Secretary of the
Treasury shall transfer to the Secretary for deposit in the
Trust Fund $745,000,000, to remain available until expended,
withdrawn, or reverted to the general fund of the Treasury.
(b) Fluctuation in Costs.--
(1) In general.--The amount appropriated under subsection
(a) shall be increased or decreased, as appropriate, by such
amounts as may be justified by reason of ordinary
fluctuations in costs, as indicated by the Bureau of
Reclamation Construction Cost Index-Composite Trend.
(2) Construction costs adjustment.--The amount appropriated
under subsection (a) shall be adjusted to address
construction cost changes necessary to account for unforeseen
market volatility that may not otherwise be captured by
engineering cost indices, as determined by the Secretary,
including repricing applicable to the types of construction
and current industry standards involved.
(3) Repetition.--The adjustment process under this
subsection shall be repeated for each subsequent amount
appropriated until the applicable amount, as adjusted, has
been appropriated.
(4) Period of indexing.--The period of indexing adjustment
under this subsection for any increment of funding shall
start on June 1, 2023, and end on the date on which the funds
are deposited in the Trust Fund.
(c) State Cost Share.--Pursuant to the Agreement, the State
shall contribute--
(1) $98,500,000, as adjusted for inflation pursuant to the
Agreement, for Signatory Acequias ditch improvements,
projects, and other purposes described in the Agreement;
(2) $32,000,000, as adjusted for inflation pursuant to the
Agreement, for the City of Espanola for water system
improvement projects; and
(3) $500,000, to be deposited in an interest-bearing
account, to mitigate impairment to non-Pueblo domestic and
livestock groundwater rights as a result of new Pueblo water
use.
SEC. 5008. ENFORCEABILITY DATE.
The Enforceability Date shall be the date on which the
Secretary publishes in the Federal Register a statement of
findings that--
(1) to the extent that the Agreement conflicts with this
division, the Agreement has been amended to conform with this
division;
(2) the Agreement, as amended, has been executed by all
parties to the Agreement, including the United States;
(3) the United States District Court for the District of
New Mexico has approved the Agreement and has entered a
Partial Final Judgment and Decree;
(4) all the amounts appropriated under section 5007(a) have
been appropriated and deposited in the Trust Fund;
(5) the State has--
(A) provided the funding under section 5007(c)(1) or
entered into a funding agreement with the intended
beneficiary for that funding;
(B) provided the funding under section 5007(c)(2) or
entered into a funding agreement with the intended
beneficiary for that funding;
(C) provided the funding under section 5007(c)(3) and
deposited that amount into the appropriate funding account;
and
(D) enacted legislation to amend State law to provide that
the Pueblo Water Rights may be leased for a term not to
exceed 99 years, including renewals; and
(6) the waivers and releases under section 5009 have been
executed by Ohkay Owingeh and the Secretary.
SEC. 5009. WAIVERS AND RELEASES OF CLAIMS.
(a) Waivers and Releases of Claims by Ohkay Owingeh and
United States as Trustee for Ohkay Owingeh.--Subject to the
reservation of rights and retention of claims under
subsection (d), as consideration for recognition of the
Pueblo Water Rights and other benefits described in the
Agreement and this division, Ohkay Owingeh and the United
States, acting as trustee for Ohkay Owingeh, shall execute a
waiver and release of all claims for--
(1) water rights within the Rio Chama Stream System that
Ohkay Owingeh, or the United States acting as trustee for
Ohkay Owingeh, asserted or could have asserted in any
proceeding, including the Adjudication, on or before the
Enforceability Date, except to the extent that such rights
are recognized in the Agreement and this division; and
(2) damages, losses, or injuries to water rights or claims
of interference with, diversion of, or taking of water rights
(including claims for injury to land resulting from such
damages, losses, injuries, interference, diversion, or taking
of water rights) in the Rio Chama Stream System that accrued
at any time up to and including the Enforceability Date.
(b) Waivers and Releases of Claims by Ohkay Owingeh Against
the United States.--Subject to the reservation of rights and
retention of claims under subsection (d), Ohkay Owingeh shall
execute a waiver and release of all claims against the United
States (including any agency or employee of the United
States) for water rights within the Rio Chama Stream System
first arising before the Enforceability Date relating to--
(1) water rights within the Rio Chama Stream System that
the United States, acting as trustee for Ohkay Owingeh,
asserted or could have asserted in any proceeding, including
the Adjudication, except to the extent that such rights are
recognized as part of the Pueblo Water Rights under this
division;
(2) foregone benefits from non-Pueblo use of water, on and
off Pueblo Land (including water from all sources and for all
uses), within the Rio Chama Stream System;
(3) damage, loss, or injury to water, water rights, land,
or natural resources due to loss of water or water rights
(including damages, losses, or injuries to hunting, fishing,
gathering, or cultural rights due to loss of water or water
rights, claims relating to interference with, diversion of,
or taking of water, or claims relating to a failure to
protect, acquire, replace, or develop water, water rights, or
water infrastructure) within the Rio Chama Stream System;
(4) failure to establish or provide a municipal, rural, or
industrial water delivery system on Pueblo Land within the
Rio Chama Stream System;
(5) damage, loss, or injury to water, water rights, land,
or natural resources due to construction, operation, and
management of irrigation projects on Pueblo Land or Federal
land and facilities (including damages, losses, or injuries
to fish habitat, wildlife, and wildlife habitat) within the
Rio Chama Stream System;
(6) failure to provide for operation, maintenance, or
deferred maintenance for any irrigation system or irrigation
project within the Rio Chama Stream System;
(7) failure to provide a dam safety improvement to a dam on
Pueblo Land within the Rio Chama Stream System;
(8) damage, loss, or injury to the bosque area of the Rio
Chama due to the construction, operation, and maintenance of
Abiquiu Dam and its associated infrastructure and resulting
Rio Chama flow management;
(9) the litigation of claims relating to any water right of
Ohkay Owingeh within the Rio Chama Stream System;
(10) the taking of the bosque property of the Pueblo within
the Pueblo Grant on the Rio Chama and Rio Grande as asserted
in Ohkay Owingeh v. United States, No. 22-1607L (Court of
Federal Claims);
(11) failure of the United States to acknowledge and
protect aboriginal rights to water in the Rio Chama Stream
System;
(12) the failure of the United States to develop the
irrigation water resources in the
[[Page S4594]]
Rio Chama Stream System on the Pueblo Grant, including
failure to--
(A) construct and deliver water through the Highline Canal;
(B) make improvements to the Chamita Ditch; and
(C) repurchase arable land unlawfully obtained by non-
Indians;
(13) the failure of the United States to prevent or remedy
non-Indians' trespass on or seizure of arable Pueblo lands in
the Rio Chama Stream System on the Pueblo Grant; and
(14) the negotiation, execution, or adoption of the
Agreement (including exhibits) and this division.
(c) Effective Date.--The waivers and releases described in
subsections (a) and (b) shall take effect on the
Enforceability Date.
(d) Reservation of Rights and Retention of Claims.--
Notwithstanding the waivers and releases under subsections
(a) and (b), the Pueblo and the United States, acting as
trustee for Ohkay Owingeh, shall retain all claims relating
to--
(1) the enforcement of, or claims accruing after the
Enforceability Date relating to, water rights recognized
under the Agreement, this division, or the Partial Final
Judgment and Decree entered in the Adjudication;
(2) activities affecting the quality of water, including
claims under--
(A) the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C. 9601 et seq.), including
claims for damages to natural resources;
(B) the Safe Drinking Water Act (42 U.S.C. 300f et seq.);
(C) the Federal Water Pollution Control Act (33 U.S.C. 1251
et seq.); and
(D) any regulations implementing the Acts described in
subparagraphs (A) through (C);
(3) the right to use and protect water rights acquired
after the date of enactment of this Act;
(4) damage, loss, or injury to land or natural resources
that is not due to loss of water or water rights, including
hunting, fishing, gathering, or cultural rights;
(5) all rights, remedies, privileges, immunities, and
powers not specifically waived and released pursuant to this
division or the Agreement; and
(6) loss of water or water rights in locations outside of
the Rio Chama Stream System.
(e) Effect of Agreement and Division.--Nothing in the
Agreement or this division--
(1) reduces or extends the sovereignty (including civil and
criminal jurisdiction) of any government entity;
(2) affects the ability of the United States, as sovereign,
to carry out any activity authorized by law, including--
(A) the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C. 9601 et seq.);
(B) the Safe Drinking Water Act (42 U.S.C. 300f et seq.);
(C) the Federal Water Pollution Control Act (33 U.S.C. 1251
et seq.);
(D) the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.);
and
(E) any regulations implementing the Acts described in
subparagraphs (A) though (D);
(3) affects the ability of the United States to act as
trustee for the Pueblo (consistent with this division), any
other pueblo or Indian Tribe, or an allottee of any other
pueblo or Indian Tribe;
(4) confers jurisdiction on any State court--
(A) to interpret Federal law relating to health, safety, or
the environment;
(B) to determine the duties of the United States or any
other party under Federal law relating to health, safety, or
the environment;
(C) to conduct judicial review of any Federal agency
action; or
(D) to interpret Pueblo law; or
(5) waives any claim of a member of Ohkay Owingeh in an
individual capacity that does not derive from a right of the
Pueblo.
(f) Tolling of Claims.--
(1) In general.--Each applicable period of limitation and
time-based equitable defense relating to a claim described in
this section shall be tolled for the period beginning on the
date of enactment of this Act and ending on the
Enforceability Date.
(2) Effect of subsection.--Nothing in this subsection
revives any claim or tolls any period of limitation or time-
based equitable defense that expired before the date of
enactment of this Act.
(3) Limitation.--Nothing in this section precludes the
tolling of any period of limitation or any time-based
equitable defense under any other applicable law.
(g) Expiration.--
(1) In general.--This division shall expire in any case in
which the Secretary fails to publish a statement of findings
under section 5008 by not later than--
(A) July 1, 2038; or
(B) such alternative later date as is agreed to by Ohkay
Owingeh and the Secretary, after providing reasonable notice
to the State.
(2) Consequences.--If this division expires under paragraph
(1)--
(A) the waivers and releases under subsections (a) and (b)
shall--
(i) expire; and
(ii) have no further force or effect;
(B) the authorization, ratification, confirmation, and
execution of the Agreement under section 5004 shall no longer
be effective;
(C) any action carried out by the Secretary, and any
contract or agreement entered into, pursuant to this division
shall be void;
(D) any unexpended Federal funds appropriated or made
available to carry out the activities authorized by this
division, together with any interest earned on those funds,
and any water rights or contracts to use water and title to
other property acquired or constructed with Federal funds
appropriated or made available to carry out the activities
authorized by this division shall be returned to the Federal
Government, unless otherwise agreed to by Ohkay Owingeh and
the United States and approved by Congress; and
(E) except for Federal funds used to acquire or construct
property that is returned to the Federal Government under
subparagraph (D), the United States shall be entitled to
offset any Federal funds made available to carry out this
division that were expended or withdrawn, or any funds made
available to carry out this division from other Federal
authorized sources, together with any interest accrued on
those funds, against any claims against the United States--
(i) relating to--
(I) water rights in the State asserted by--
(aa) Ohkay Owingeh; or
(bb) any user of the Pueblo Water Rights; or
(II) any other matter covered by subsection (b); or
(ii) in any future settlement of water rights of Ohkay
Owingeh.
SEC. 5010. SATISFACTION OF CLAIMS.
The benefits provided under this division shall be in
complete replacement of, complete substitution for, and full
satisfaction of any claim of Ohkay Owingeh against the United
States that is waived and released by Ohkay Owingeh pursuant
to section 5009(b).
SEC. 5011. MISCELLANEOUS PROVISIONS.
(a) No Waiver of Sovereign Immunity by the United States.--
Nothing in this division waives the sovereign immunity of the
United States.
(b) Other Tribes Not Adversely Affected.--Nothing in this
division quantifies or diminishes any land or water right, or
any claim or entitlement to land or water, of an Indian
Tribe, band, pueblo, or community other than Ohkay Owingeh.
(c) Effect on Current Law.--Nothing in this division
affects any provision of law (including regulations) in
effect on the day before the date of enactment of this Act
with respect to pre-enforcement review of any Federal
environmental enforcement action.
(d) Conflict.--In the event of a conflict between the
Agreement and this division, this division shall control.
(e) Hold Harmless.--For any bosque restoration or
improvement project carried out by the Pueblo with funds
appropriated under this division, the Pueblo shall hold and
save the United States free from damages due to the
construction or operation and maintenance of the project.
SEC. 5012. ANTIDEFICIENCY.
The United States shall not be liable for any failure to
carry out any obligation or activity authorized by this
division, including any obligation or activity under the
Agreement, if adequate appropriations are not provided
expressly by Congress to carry out the purposes of this
division.
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