[Senate Report 110-401]
[From the U.S. Government Publishing Office]
Calendar No. 839
110th Congress Report
SENATE
2d Session 110-401
======================================================================
NORTHWESTERN NEW MEXICO RURAL WATER PROJECTS ACT
_______
June 25, 2008.--Ordered to be printed
_______
Mr. Bingaman, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 1171]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 1171) to amend the Colorado River Storage
Project Act and Public Law 87-483 to authorize the construction
and rehabilitation of water infrastructure in Northwestern New
Mexico, to authorize the use of the reclamation fund to fund
the Reclamation Water Settlements Fund, to authorize the
conveyance of certain Reclamation land and infrastructure, to
authorize the Commissioner of Reclamation to provide for the
delivery of water, and for other purposes, having considered
the same, reports favorably thereon with an amendment and
recommends that the bill, as amended, do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
(a) Short Title.--This Act may be cited as the ``Northwestern New
Mexico Rural Water Projects Act''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title.
Sec. 2. Definitions.
Sec. 3. Compliance with environmental laws.
Sec. 4. No reallocation of costs.
Sec. 5. Interest rate.
TITLE I--AMENDMENTS TO THE COLORADO RIVER STORAGE PROJECT ACT AND
PUBLIC LAW 87-483
Sec. 101. Amendments to the Colorado River Storage Project Act.
Sec. 102. Amendments to Public Law 87-483.
Sec. 103. Effect on Federal water law.
TITLE II--RECLAMATION WATER SETTLEMENTS FUND
Sec. 201. Reclamation Water Settlements Fund.
TITLE III--NAVAJO-GALLUP WATER SUPPLY PROJECT
Sec. 301. Purposes.
Sec. 302. Authorization of Navajo-Gallup Water Supply Project.
Sec. 303. Delivery and use of Navajo-Gallup Water Supply Project water.
Sec. 304. Project contracts.
Sec. 305. Navajo Nation Municipal Pipeline.
Sec. 306. Authorization of conjunctive use wells.
Sec. 307. San Juan River Navajo Irrigation Projects.
Sec. 308. Other irrigation projects.
Sec. 309. Authorization of appropriations.
TITLE IV--NAVAJO NATION WATER RIGHTS
Sec. 401. Agreement.
Sec. 402. Trust Fund.
Sec. 403. Waivers and releases.
Sec. 404. Water rights held in trust.
SEC. 2. DEFINITIONS.
In this Act:
(1) Aamodt adjudication.--The term ``Aamodt adjudication''
means the general stream adjudication that is the subject of
the civil action entitled ``State of New Mexico, ex rel. State
Engineer and United States of America, Pueblo de Nambe, Pueblo
de Pojoaque, Pueblo de San Ildefonso, and Pueblo de Tesuque v.
R. Lee Aamodt, et al.'', No. 66 CV 6639 MV/LCS (D.N.M.).
(2) Abeyta adjudication.--The term ``Abeyta adjudication''
means the general stream adjudication that is the subject of
the civil actions entitled ``State of New Mexico v. Abeyta and
State of New Mexico v. Arrellano'', Civil Nos. 7896-BB (D.N.M)
and 7939-BB (D.N.M.) (consolidated).
(3) Acre-feet.--The term ``acre-feet'' means acre-feet per
year.
(4) Agreement.--The term ``Agreement'' means the agreement
among the State of New Mexico, the Nation, and the United
States setting forth a stipulated and binding agreement signed
by the State of New Mexico and the Nation on April 19, 2005.
(5) Allottee.--The ``allottee'' means a person that holds a
beneficial real property interest in a Navajo allotment that--
(A) is located within the Navajo Reservation or the
State of New Mexico;
(B) is held in trust by the United States; and
(C) was originally granted to an individual member of
the Nation by public land order or otherwise.
(6) Animas-la plata project.--The term ``Animas-La Plata
Project'' has the meaning given the term in section 3 of Public
Law 100-585 (102 Stat. 2973), including Ridges Basin Dam, Lake
Nighthorse, the Navajo Nation Municipal Pipeline, and any other
features or modifications made pursuant to the Colorado Ute
Settlement Act Amendments of 2000 (Public Law 106-554; 114
Stat. 2763A-258).
(7) City.--The term ``City'' means the city of Gallup, New
Mexico, or a designee of the City, with authority to provide
water to the Gallup, New Mexico service area.
(8) Compact.--The term ``Compact'' means the Upper Colorado
River Basin Compact as consented to by the Act of April 6, 1949
(63 Stat. 31, chapter 48).
(9) Contract.--The term ``Contract'' means the contract
between the United States and the Nation setting forth certain
commitments, rights, and obligations of the United States and
the Nation, as described in paragraph 6.0 of the Agreement.
(10) Depletion.--The term ``depletion'' means the depletion
of the flow of the San Juan River stream system in the State of
New Mexico by a particular use of water (including any
depletion incident to the use) and represents the diversion
from the stream system by the use, less return flows to the
stream system from the use.
(11) Draft impact statement.--The term ``Draft Impact
Statement'' means the draft environmental impact statement
prepared by the Bureau of Reclamation for the Project dated
March 2007.
(12) Fund.--The term ``Fund'' means the Reclamation Waters
Settlements Fund established by section 201(a).
(13) Hydrologic determination.--The term ``hydrologic
determination'' means the hydrologic determination entitled
``Water Availability from Navajo Reservoir and the Upper
Colorado River Basin for Use in New Mexico,'' prepared by the
Bureau of Reclamation pursuant to section 11 of the Act of June
13, 1962 (Public Law 87-483; 76 Stat. 99), and dated May 23,
2007.
(14) Nation.--The term ``Nation'' means the Navajo Nation, a
body politic and federally-recognized Indian nation as provided
for in section 101(2) of the Federally Recognized Indian Tribe
List of 1994 (25 U.S.C. 497a(2)), also known variously as the
``Navajo Tribe,'' the ``Navajo Tribe of Arizona, New Mexico &
Utah,'' and the ``Navajo Tribe of Indians'' and other similar
names, and includes all bands of Navajo Indians and chapters of
the Navajo Nation.
(15) Navajo-gallup water supply project; project.--The term
``Navajo-Gallup Water Supply Project'' or ``Project'' means the
Navajo-Gallup Water Supply Project authorized under section
302(a), as described as the preferred alternative in the Draft
Impact Statement.
(16) Navajo indian irrigation project.--The term ``Navajo
Indian Irrigation Project'' means the Navajo Indian irrigation
project authorized by section 2 of Public Law 87-483 (76 Stat.
96).
(17) Navajo reservoir.--The term ``Navajo Reservoir'' means
the reservoir created by the impoundment of the San Juan River
at Navajo Dam, as authorized by the Act of April 11, 1956
(commonly known as the ``Colorado River Storage Project Act'')
(43 U.S.C. 620 et seq.).
(18) Navajo nation municipal pipeline; pipeline.--The term
``Navajo Nation Municipal Pipeline'' or ``Pipeline'' means the
pipeline used to convey the water of the Animas-La Plata
Project of the Navajo Nation from the City of Farmington, New
Mexico, to communities of the Navajo Nation located in close
proximity to the San Juan River Valley in the State of New
Mexico (including the City of Shiprock), as authorized by
section 15(b) of the Colorado Ute Indian Water Rights
Settlement Act of 1988 (Public Law 100-585; 102 Stat. 2973; 114
Stat. 2763A-263).
(19) Non-navajo irrigation districts.--The term ``Non-Navajo
Irrigation Districts'' means--
(A) the Hammond Conservancy District;
(B) the Bloomfield Irrigation District; and
(C) any other community ditch organization in the San
Juan River basin in the State of New Mexico.
(20) Partial final decree.--The term ``Partial Final Decree''
means a final and binding judgement and decree entered by a
court in the stream adjudication, setting forth the rights of
the Nation to use and administer waters of the San Juan River
Basin in New Mexico, as set forth in Appendix 1 of the
Agreement.
(21) Project participants.--The term ``Project Participants''
means the City, the Nation, and the Jicarilla Apache Nation.
(22) San juan river basin recovery implementation program.--
The term ``San Juan River Basin Recovery Implementation
Program'' means the intergovernmental program established
pursuant to the cooperative agreement dated October 21, 1992
(including any amendments to the program).
(23) Secretary.--The term ``Secretary'' means the Secretary
of the Interior, acting through the Commissioner of Reclamation
or any other designee.
(24) Stream adjudication.--The term ``stream adjudication''
means the general stream adjudication that is the subject of
New Mexico v. United States, et al., No. 75-185 (11th Jud.
Dist., San Juan County, New Mexico) (involving claims to waters
of the San Juan River and the tributaries of that river).
(25) Supplemental partial final decree.--The term
``Supplemental Partial Final Decree'' means a final and binding
judgement and decree entered by a court in the stream
adjudication, setting forth certain water rights of the Nation,
as set forth in Appendix 2 of the Agreement.
(26) Trust fund.--The term ``Trust Fund'' means the Navajo
Nation Water Resources Development Trust Fund established by
section 402(a).
SEC. 3. COMPLIANCE WITH ENVIRONMENTAL LAWS.
(a) Effect of Execution of Agreement.--The execution of the Agreement
under section 401(a)(2) shall not constitute a major Federal action
under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.).
(b) Compliance With Environmental Laws.--In carrying out this Act,
the Secretary shall comply with each law of the Federal Government
relating to the protection of the environment, including--
(1) the National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.); and
(2) the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.).
SEC. 4. NO REALLOCATION OF COSTS.
(a) Effect of Act.--Notwithstanding any other provision of law, the
Secretary shall not reallocate or reassign any costs of projects that
have been authorized under the Act of April 11, 1956 (commonly known as
the ``Colorado River Storage Project Act'') (43 U.S.C. 620 et seq.), as
of the date of enactment of this Act because of--
(1) the authorization of the Navajo-Gallup Water Supply
Project under this Act; or
(2) the changes in the uses of the water diverted by the
Navajo Indian Irrigation Project or the waters stored in the
Navajo Reservoir authorized under this Act.
(b) Use of Power Revenues.--Notwithstanding any other provision of
law, no power revenues under the Act of April 11, 1956 (commonly known
as the ``Colorado River Storage Project Act'') (43 U.S.C. 620 et seq.),
shall be used to pay or reimburse any costs of the Navajo Indian
Irrigation Project or Navajo-Gallup Water Supply Project.
SEC. 5. INTEREST RATE.
Notwithstanding any other provision of law, the interest rate
applicable to any repayment contract entered into under section 304
shall be equal to the discount rate for Federal water resources
planning, as determined by the Secretary.
TITLE I--AMENDMENTS TO THE COLORADO RIVER STORAGE PROJECT ACT AND
PUBLIC LAW 87-483
SEC. 101. AMENDMENTS TO THE COLORADO RIVER STORAGE PROJECT ACT.
(a) Participating Projects.--Paragraph (2) of the first section of
the Act of April 11, 1956 (commonly known as the ``Colorado River
Storage Project Act'') (43 U.S.C. 620(2)) is amended by inserting ``the
Navajo-Gallup Water Supply Project,'' after ``Fruitland Mesa,''.
(b) Navajo Reservoir Water Bank.--The Act of April 11, 1956 (commonly
known as the ``Colorado River Storage Project Act'') is amended--
(1) by redesignating section 16 (43 U.S.C. 620o) as section
17; and
(2) by inserting after section 15 (43 U.S.C. 620n) the
following:
``Sec. 16. (a) The Secretary of the Interior may create and operate
within the available capacity of Navajo Reservoir a top water bank.
``(b) Water made available for the top water bank in accordance with
subsections (c) and (d) shall not be subject to section 11 of Public
Law 87-483 (76 Stat. 99).
``(c) The top water bank authorized under subsection (a) shall be
operated in a manner that--
``(1) is consistent with applicable law, except that,
notwithstanding any other provision of law, water for purposes
other than irrigation may be stored in the Navajo Reservoir
pursuant to the rules governing the top water bank established
under this section; and
``(2) does not impair the ability of the Secretary of the
Interior to deliver water under contracts entered into under--
``(A) Public Law 87-483 (76 Stat. 96); and
``(B) New Mexico State Engineer File Nos. 2847, 2848,
2849, and 2917.
``(d)(1) The Secretary of the Interior, in cooperation with the State
of New Mexico (acting through the Interstate Stream Commission), shall
develop any terms and procedures for the storage, accounting, and
release of water in the top water bank that are necessary to comply
with subsection (c).
``(2) The terms and procedures developed under paragraph (1) shall
include provisions requiring that--
``(A) the storage of banked water shall be subject to
approval under State law by the New Mexico State Engineer to
ensure that impairment of any existing water right does not
occur, including storage of water under New Mexico State
Engineer File No. 2849;
``(B) water in the top water bank be subject to evaporation
and other losses during storage;
``(C) water in the top water bank be released for delivery to
the owner or assigns of the banked water on request of the
owner, subject to reasonable scheduling requirements for making
the release;
``(D) water in the top water bank be the first water spilled
or released for flood control purposes in anticipation of a
spill, on the condition that top water bank water shall not be
released or included for purposes of calculating whether a
release should occur for purposes of satisfying the flow
recommendations of the San Juan River Basin Recovery
Implementation Program; and
``(E) water eligible for banking in the top water bank shall
be water that otherwise would have been diverted and
beneficially used in New Mexico that year.
``(e) The Secretary of the Interior may charge fees to water users
that use the top water bank in amounts sufficient to cover the costs
incurred by the United States in administering the water bank.''.
SEC. 102. AMENDMENTS TO PUBLIC LAW 87-483.
(a) Navajo Indian Irrigation Project.--Public Law 87-483 (76 Stat.
96) is amended by striking section 2 and inserting the following:
``Sec. 2. (a) In accordance with the Act of April 11, 1956 (commonly
known as the `Colorado River Storage Project Act') (43 U.S.C. 620 et
seq.), the Secretary of the Interior is authorized to construct,
operate, and maintain the Navajo Indian Irrigation Project to provide
irrigation water to a service area of not more than 110,630 acres of
land.
``(b)(1) Subject to paragraph (2), the average annual diversion by
the Navajo Indian Irrigation Project from the Navajo Reservoir over any
consecutive 10-year period shall be the lesser of--
``(A) 508,000 acre-feet per year; or
``(B) the quantity of water necessary to supply an average
depletion of 270,000 acre-feet per year.
``(2) The quantity of water diverted for any 1 year shall not exceed
the average annual diversion determined under paragraph (1) by more
than 15 percent.
``(c) In addition to being used for irrigation, the water diverted by
the Navajo Indian Irrigation Project under subsection (b) may be used
within the area served by Navajo Indian Irrigation Project facilities
for the following purposes:
``(1) Aquaculture purposes, including the rearing of fish in
support of the San Juan River Basin Recovery Implementation
Program authorized by Public Law 106-392 (114 Stat. 1602).
``(2) Domestic, industrial, or commercial purposes relating
to agricultural production and processing.
``(3)(A) The generation of hydroelectric power as an incident
to the diversion of water by the Navajo Indian Irrigation
Project for authorized purposes.
``(B) Notwithstanding any other provision of law--
``(i) any hydroelectric power generated under this
paragraph shall be used or marketed by the Navajo
Nation;
``(ii) the Navajo Nation shall retain any revenues
from the sale of the hydroelectric power; and
``(iii) the United States shall have no trust
obligation to monitor, administer, or account for the
revenues received by the Navajo Nation, or the
expenditure of the revenues.
``(4) The implementation of the alternate water source
provisions described in subparagraph 9.2 of the agreement
executed under section 401(a)(2) of the Northwestern New Mexico
Rural Water Projects Act.
``(d) The Navajo Indian Irrigation Project water diverted under
subsection (b) may be transferred to areas located within or outside
the area served by Navajo Indian Irrigation Project facilities, and
within or outside the boundaries of the Navajo Nation, for any
beneficial use in accordance with--
``(1) the agreement executed under section 401(a)(2) of the
Northwestern New Mexico Rural Water Projects Act;
``(2) the contract executed under section 304(a)(2)(B) of
that Act; and
``(3) any other applicable law.
``(e) The Secretary may use the capacity of the Navajo Indian
Irrigation Project works to convey water supplies for--
``(1) the Navajo-Gallup Water Supply Project under section
302 of the Northwestern New Mexico Rural Water Projects Act; or
``(2) other nonirrigation purposes authorized under
subsection (c) or (d).
``(f)(1) Repayment of the costs of construction of the project (as
authorized in subsection (a)) shall be in accordance with the Act of
April 11, 1956 (commonly known as the `Colorado River Storage Project
Act') (43 U.S.C. 620 et seq.), including section 4(d) of that Act.
``(2) The Secretary shall not reallocate, or require repayment of,
construction costs of the Navajo Indian Irrigation Project because of
the conveyance of water supplies for nonirrigation purposes under
subsection (e).''.
(b) Runoff Above Navajo Dam.--Section 11 of Public Law 87-483 (76
Stat. 100) is amended by adding at the end the following:
``(d)(1) For purposes of implementing in a year of prospective
shortage the water allocation procedures established by subsection (a),
the Secretary of the Interior shall determine the quantity of any
shortages and the appropriate apportionment of water using the normal
diversion requirements on the flow of the San Juan River originating
above Navajo Dam based on the following criteria:
``(A) The quantity of diversion or water delivery for the
current year anticipated to be necessary to irrigate land in
accordance with cropping plans prepared by contractors.
``(B) The annual diversion or water delivery demands for the
current year anticipated for non-irrigation uses under water
delivery contracts, including contracts authorized by the
Northwestern New Mexico Rural Water Projects Act, but excluding
any current demand for surface water for placement into aquifer
storage for future recovery and use.
``(C) An annual normal diversion demand of 135,000 acre-feet
for the initial stage of the San Juan-Chama Project authorized
by section 8.
``(2) The Secretary shall not include in the normal diversion
requirements--
``(A) the quantity of water that reliably can be anticipated
to be diverted or delivered under a contract from inflows to
the San Juan River arising below Navajo Dam under New Mexico
State Engineer File No. 3215; or
``(B) the quantity of water anticipated to be supplied
through reuse.
``(e)(1) If the Secretary determines that there is a shortage of
water under subsection (a), the Secretary shall respond to the shortage
in the Navajo Reservoir water supply by curtailing releases and
deliveries in the following order:
``(A) The demand for delivery for uses in the State of
Arizona under the Navajo-Gallup Water Supply Project authorized
by section 303 of the Northwestern New Mexico Rural Water
Projects Act, excluding the quantity of water anticipated to be
diverted for the uses from inflows to the San Juan River that
arise below Navajo Dam in accordance with New Mexico State
Engineer File No. 3215.
``(B) The demand for delivery for uses allocated under
paragraph 8.2 of the agreement executed under section 401(a)(2)
of the Northwestern New Mexico Rural Water Projects Act,
excluding the quantity of water anticipated to be diverted for
such uses under State Engineer File No. 3215.
``(C) The uses in the State of New Mexico that are determined
under subsection (d), in accordance with the procedure for
apportioning the water supply under subsection (a).
``(2) For any year for which the Secretary determines and responds to
a shortage in the Navajo Reservoir water supply, the Secretary shall
not deliver, and contractors of the water supply shall not divert, any
of the water supply for placement into aquifer storage for future
recovery and use.
``(3) To determine the occurrence and amount of any shortage to
contracts entered into under this section, the Secretary shall not
include as available storage any water stored in a top water bank in
Navajo Reservoir established under section 16(a) of the Act of April
11, 1956 (commonly known as the `Colorado River Storage Project Act').
``(f) The Secretary of the Interior shall apportion water under
subsections (a), (d), and (e) on an annual volume basis.
``(g) The Secretary of the Interior may revise a determination of
shortages, apportionments, or allocations of water under subsections
(a), (d), and (e) on the basis of information relating to water supply
conditions that was not available at the time at which the
determination was made.
``(h) Nothing in this section prohibits the distribution of water in
accordance with cooperative water agreements between water users
providing for a sharing of water supplies.
``(i) Diversions under New Mexico State Engineer File No. 3215 shall
be distributed, to the maximum extent water is available, in
proportionate amounts to the diversion demands of contractors and
subcontractors of the Navajo Reservoir water supply that are diverting
water below Navajo Dam.''.
SEC. 103. EFFECT ON FEDERAL WATER LAW.
Unless expressly provided in this Act, nothing in this Act modifies,
conflicts with, preempts, or otherwise affects--
(1) the Boulder Canyon Project Act (43 U.S.C. 617 et seq.);
(2) the Boulder Canyon Project Adjustment Act (54 Stat. 774,
chapter 643);
(3) the Act of April 11, 1956 (commonly known as the
``Colorado River Storage Project Act'') (43 U.S.C. 620 et
seq.);
(4) the Act of September 30, 1968 (commonly known as the
``Colorado River Basin Project Act'') (82 Stat. 885);
(5) Public Law 87-483 (76 Stat. 96);
(6) the Treaty between the United States of America and
Mexico representing utilization of waters of the Colorado and
Tijuana Rivers and of the Rio Grande, signed at Washington
February 3, 1944 (59 Stat. 1219);
(7) the Colorado River Compact of 1922, as approved by the
Presidential Proclamation of June 25, 1929 (46 Stat. 3000);
(8) the Compact;
(9) the Act of April 6, 1949 (63 Stat. 31, chapter 48);
(10) the Jicarilla Apache Tribe Water Rights Settlement Act
(106 Stat. 2237); or
(11) section 205 of the Energy and Water Development
Appropriations Act, 2005 (118 Stat. 2949).
TITLE II--RECLAMATION WATER SETTLEMENTS FUND
SEC. 201. RECLAMATION WATER SETTLEMENTS FUND.
(a) Establishment.--There is established in the Treasury of the
United States a fund, to be known as the ``Reclamation Water
Settlements Fund'', consisting of--
(1) such amounts as are deposited to the Fund under
subsection (b); and
(2) any interest earned on investment of amounts in the Fund
under subsection (d).
(b) Deposits to Fund.--
(1) In general.--For each of fiscal years 2009 through 2023,
the Secretary of the Treasury shall deposit in the Fund, if
available, $120,000,000 of the revenues that would otherwise be
deposited for the fiscal year in the fund established by the
first section of the Act of June 17, 1902 (32 Stat. 388,
chapter 1093).
(2) Availability of amounts.--Amounts deposited in the Fund
under paragraph (1) shall be made available pursuant to this
section--
(A) without further appropriation; and
(B) in addition to amounts appropriated pursuant to
any authorization contained in any other provision of
law.
(c) Expenditures From Fund.--
(1) In general.--
(A) Expenditures.--Subject to subparagraph (B), for
each of fiscal years 2009 through 2028, the Secretary
may expend from the Fund an amount not to exceed
$120,000,000, plus the interest accrued in the Fund,
for the fiscal year in which expenditures are made
pursuant to paragraphs (2) and (3).
(B) Additional expenditures.--The Secretary may
expend more than $120,000,000 for any fiscal year if
such amounts are available in the Fund due to
expenditures not reaching $120,000,000 for prior fiscal
years.
(2) Authority.--The Secretary may expend money from the Fund
to implement a settlement agreement approved by Congress that
resolves, in whole or in part, litigation involving the United
States, if the settlement agreement or implementing legislation
requires the Bureau of Reclamation to provide financial
assistance for, or plan, design, and construct--
(A) water supply infrastructure; or
(B) a project--
(i) to rehabilitate a water delivery system
to conserve water; or
(ii) to restore fish and wildlife habitat or
otherwise improve environmental conditions
associated with or affected by, or located
within the same river basin as, a Federal
reclamation project that is in existence on the
date of enactment of this Act.
(3) Use for completion of project and other settlements.--
(A) Priorities.--
(i) First priority.--
(I) In general.--The first priority
for expenditure of amounts in the Fund
during the entire period in which the
Fund is in existence shall be for the
purposes described in, and in the order
of, clauses (i) through (iv) of
subparagraph (B).
(II) Reserved amounts.--The Secretary
shall reserve amounts deposited into
the Fund in accordance with subclause
(I).
(ii) Other purposes.--Any amounts in the Fund
that are not needed for the purposes described
in subparagraph (B) may be used for other
purposes authorized in paragraph (2).
(B) Completion of project.--
(i) Navajo-gallup water supply project.--
(I) In general.--Subject to subclause
(II), effective beginning January 1,
2009, if, in the judgment of the
Secretary on an annual basis the
deadline described in section
401(f)(1)(A)(ix) is unlikely to be met
because a sufficient amount of funding
is not otherwise available through
appropriations made available pursuant
to section 309(a), the Secretary shall
expend from the Fund such amounts on an
annual basis consistent with paragraphs
(1) and (2), as are necessary to pay
the Federal share of the costs, and
substantially complete as expeditiously
as practicable, the construction of the
water supply infrastructure authorized
as part of the Project.
(II) Maximum amount.--
(aa) In general.--Except as
provided under item (bb), the
amount expended under subclause
(I) shall not exceed
$500,000,000 for the period of
fiscal years 2009 through 2018.
(bb) Exception.--The
limitation on the expenditure
amount under item (aa) may be
exceeded during the entire
period in which the Fund is in
existence.
(ii) Other new mexico settlements.--
(I) In general.--Subject to subclause
(II), effective beginning January 1,
2009, in addition to the funding made
available under clause (i), if in the
judgment of the Secretary on an annual
basis a sufficient amount of funding is
not otherwise available through annual
appropriations, the Secretary shall
expend from the Fund such amounts on an
annual basis consistent with paragraphs
(1) and (2), as are necessary to pay
the Federal share of the costs of
implementing the Indian water rights
settlement agreements entered into by
the State of New Mexico in the Aamodt
adjudication and the Abeyta
adjudication, if such settlements are
subsequently approved and authorized by
an Act of Congress.
(II) Maximum amount.--The amount
expended under subclause (I) shall not
exceed $250,000,000.
(iii) Montana settlements.--
(I) In general.--Subject to subclause
(II), effective beginning January 1,
2009, in addition to funding made
available pursuant to clauses (i) and
(ii), if in the judgment of the
Secretary on an annual basis a
sufficient amount of funding is not
otherwise available through annual
appropriations, the Secretary shall
expend from the Fund such amounts on an
annual basis consistent with paragraphs
(1) and (2), as are necessary to pay
the Federal share of the costs of
implementing Indian water rights
settlement agreements entered into by
the State of Montana with the Blackfeet
Tribe, the Crow Tribe, or the Gros
Ventre and Assiniboine Tribes of the
Fort Belknap Indian Reservation in the
judicial proceeding entitled ``In re
the General Adjudication of All the
Rights to Use Surface and Groundwater
in the State of Montana'', if a
settlement or settlements are
subsequently approved and authorized by
an Act of Congress.
(II) Maximum amount.--
(aa) In general.--Except as
provided under item (bb), the
amount expended under subclause
(I) shall not exceed
$350,000,000 for the period of
fiscal years 2009 through 2018.
(bb) Exception.--The
limitation on the expenditure
amount under item (aa) may be
exceeded during the entire
period in which the Fund is in
existence.
(cc) Other funding.--The
Secretary shall ensure that any
such funding shall be provided
in a manner that does not limit
the funding available pursuant
to clauses (i) and (ii).
(iv) Arizona settlement.--
(I) In general.--Subject to subclause
(II), effective beginning January 1,
2009, in addition to funding made
available pursuant to clauses (i),
(ii), and (iii), if in the judgment of
the Secretary on an annual basis a
sufficient amount of funding is not
otherwise available through annual
appropriations, the Secretary shall
expend from the Fund such amounts on an
annual basis consistent with paragraphs
(1) and (2), as are necessary to pay
the Federal share of the costs of
implementing an Indian water rights
settlement agreement entered into by
the State of Arizona with the Navajo
Nation to resolve the water rights
claims of the Nation in the Lower
Colorado River basin in Arizona, if a
settlement is subsequently approved and
authorized by an Act of Congress.
(II) Maximum amount.--
(aa) In general.--Except as
provided under item (bb), the
amount expended under subclause
(I) shall not exceed
$100,000,000 for the period of
fiscal years 2009 through 2018.
(bb) Exception.--The
limitation on the expenditure
amount under item (aa) may be
exceeded during the entire
period in which the Fund is in
existence.
(cc) Other funding.--The
Secretary shall ensure that any
such funding shall be provided
in a manner that does not limit
the funding available pursuant
to clauses (i) and (ii).
(C) Reversion.--If the settlements described in
clauses (ii) through (iv) of subparagraph (B) have not
been approved and authorized by an Act of Congress by
December 31, 2014, the amounts reserved for the
settlements shall no longer be reserved by the
Secretary pursuant to subparagraph (A)(i) and shall
revert to the Fund for any authorized use, as
determined by the Secretary.
(d) Investment of Amounts.--
(1) In general.--The Secretary shall invest such portion of
the Fund as is not, in the judgment of the Secretary, required
to meet current withdrawals.
(2) Credits to fund.--The interest on, and the proceeds from
the sale or redemption of, any obligations held in the Fund
shall be credited to, and form a part of, the Fund.
(e) Transfers of Amounts.--
(1) In general.--The amounts required to be transferred to
the Fund under this section shall be transferred at least
monthly from the general fund of the Treasury to the Fund on
the basis of estimates made by the Secretary of the Treasury.
(2) Adjustments.--Proper adjustment shall be made in amounts
subsequently transferred to the extent prior estimates were in
excess of or less than the amounts required to be transferred.
(f) Termination.--On September 30, 2028--
(1) the Fund shall terminate; and
(2) the unexpended and unobligated balance of the Fund shall
be transferred to the appropriate fund of the Treasury.
TITLE III--NAVAJO-GALLUP WATER SUPPLY PROJECT
SEC. 301. PURPOSES.
The purposes of this subtitle are--
(1) to authorize the Secretary to construct, operate, and
maintain the Navajo-Gallup Water Supply Project;
(2) to allocate the capacity of the Project among the Nation,
the City, and the Jicarilla Apache Nation; and
(3) to authorize the Secretary to enter into Project
repayment contracts with the City and the Jicarilla Apache
Nation.
SEC. 302. AUTHORIZATION OF NAVAJO-GALLUP WATER SUPPLY PROJECT.
(a) In General.--The Secretary, acting through the Commissioner of
Reclamation, is authorized to design, construct, operate, and maintain
the Project in substantial accordance with the preferred alternative in
the Draft Impact Statement.
(b) Project Facilities.--To provide for the delivery of San Juan
River water to Project Participants, the Secretary may construct,
operate, and maintain the Project facilities described in the preferred
alternative in the Draft Impact Statement, including:
(1) A pumping plant on the San Juan River in the vicinity of
Kirtland, New Mexico.
(2)(A) A main pipeline from the San Juan River near Kirtland,
New Mexico, to Shiprock, New Mexico, and Gallup, New Mexico,
which follows United States Highway 491.
(B) Any pumping plants associated with the pipeline
authorized under subparagraph (A).
(3)(A) A main pipeline from Cutter Reservoir to Ojo Encino,
New Mexico, which follows United States Highway 550.
(B) Any pumping plants associated with the pipeline
authorized under subparagraph (A).
(4)(A) Lateral pipelines from the main pipelines to Nation
communities in the States of New Mexico and Arizona.
(B) Any pumping plants associated with the pipelines
authorized under subparagraph (A).
(5) Any water regulation, storage or treatment facility,
service connection to an existing public water supply system,
power substation, power distribution works, or other
appurtenant works (including a building or access road) that is
related to the Project facilities authorized by paragraphs (1)
through (4), including power transmission facilities and
associated wheeling services to connect Project facilities to
existing high-voltage transmission facilities and deliver power
to the Project.
(c) Acquisition of Land.--
(1) In general.--The Secretary is authorized to acquire any
land or interest in land that is necessary to construct,
operate, and maintain the Project facilities authorized under
subsection (b).
(2) Land of the project participants.--As a condition of
construction of the facilities authorized under this title, the
Project Participants shall provide all land or interest in
land, as appropriate, that the Secretary identifies as
necessary for acquisition under this subsection at no cost to
the Secretary.
(3) Limitation.--The Secretary may not condemn water rights
for purposes of the Project.
(d) Conditions.--
(1) In general.--Except as provided in paragraph (2), the
Secretary shall not commence construction of the facilities
authorized under subsection (b) until such time as--
(A) the Secretary executes the Agreement and the
Contract;
(B) the contracts authorized under section 304 are
executed;
(C) the Secretary--
(i) completes an environmental impact
statement for the Project; and
(ii) has issued a record of decision that
provides for a preferred alternative; and
(D) the Secretary has entered into an agreement with
the State of New Mexico under which the State of New
Mexico will provide a share of the construction costs
of the Project of not less than $50,000,000, except
that the State of New Mexico shall receive credit for
funds the State has contributed to construct water
conveyance facilities to the Project Participants to
the extent that the facilities reduce the cost of the
Project as estimated in the Draft Impact Statement.
(2) Exception.--If the Jicarilla Apache Nation elects not to
enter into a contract pursuant to section 304, the Secretary,
after consulting with the Nation, the City, and the State of
New Mexico acting through the Interstate Stream Commission, may
make appropriate modifications to the scope of the Project and
proceed with Project construction if all other conditions for
construction have been satisfied.
(3) Effect of indian self-determination and education
assistance act.--The Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450 et seq.) shall not apply to the
design, construction, operation, maintenance, or replacement of
the Project.
(e) Power.--The Secretary shall reserve, from existing reservations
of Colorado River Storage Project power for Bureau of Reclamation
projects, up to 26 megawatts of power for use by the Project.
(f) Conveyance of Title to Project Facilities.--
(1) In general.--The Secretary is authorized to enter into
separate agreements with the City and the Nation and, on
entering into the agreements, shall convey title to each
Project facility or section of a Project facility authorized
under subsection (b) (including any appropriate interests in
land) to the City and the Nation after--
(A) completion of construction of a Project facility
or a section of a Project facility that is operating
and delivering water; and
(B) execution of a Project operations agreement
approved by the Secretary and the Project Participants
that sets forth--
(i) any terms and conditions that the
Secretary determines are necessary--
(I) to ensure the continuation of the
intended benefits of the Project; and
(II) to fulfill the purposes of this
subtitle;
(ii) requirements acceptable to the Secretary
and the Project Participants for--
(I) the distribution of water under
the Project or section of a Project
facility; and
(II) the allocation and payment of
annual operation, maintenance, and
replacement costs of the Project or
section of a Project facility based on
the proportionate uses of Project
facilities; and
(iii) conditions and requirements acceptable
to the Secretary and the Project Participants
for operating and maintaining each Project
facility on completion of the conveyance of
title, including the requirement that the City
and the Nation shall--
(I) comply with--
(aa) the Compact; and
(bb) other applicable law;
and
(II) be responsible for--
(aa) the operation,
maintenance, and replacement of
each Project facility; and
(bb) the accounting and
management of water conveyance
and Project finances, as
necessary to administer and
fulfill the conditions of the
Contract executed under section
304(a)(2)(B).
(2) Effect of conveyance.--The conveyance of title to each
Project facility shall not affect the application of the
Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.)
relating to the use of the water associated with the Project.
(3) Liability.--
(A) In general.--Effective on the date of the
conveyance authorized by this subsection, the United
States shall not be held liable by any court for
damages of any kind arising out of any act, omission,
or occurrence relating to the land, buildings, or
facilities conveyed under this subsection, other than
damages caused by acts of negligence committed by the
United States, or by employees or agents of the United
States, prior to the date of conveyance.
(B) Tort claims.--Nothing in this section increases
the liability of the United States beyond the liability
provided in chapter 171 of title 28, United States Code
(commonly known as the ``Federal Tort Claims Act'').
(4) Notice of proposed conveyance.--Not later than 45 days
before the date of a proposed conveyance of title to any
Project facility, the Secretary shall submit to the Committee
on Resources of the House of Representatives and to the
Committee on Energy and Natural Resources of the Senate notice
of the conveyance of each Project facility.
(g) Colorado River Storage Project Power.--The conveyance of Project
facilities under subsection (f) shall not affect the availability of
Colorado River Storage Project power to the Project under subsection
(e).
(h) Regional Use of Project Facilities.--
(1) In general.--Subject to paragraph (2), Project facilities
constructed under subsection (b) may be used to treat and
convey non-Project water or water that is not allocated by
subsection 303(b) if--
(A) capacity is available without impairing any water
delivery to a Project Participant; and
(B) the unallocated or non-Project water
beneficiary--
(i) has the right to use the water;
(ii) agrees to pay the operation,
maintenance, and replacement costs assignable
to the beneficiary for the use of the Project
facilities; and
(iii) agrees to pay an appropriate fee that
may be established by the Secretary to assist
in the recovery of any capital cost allocable
to that use.
(2) Effect of payments.--Any payments to the United States or
the Nation for the use of unused capacity under this subsection
or for water under any subcontract with the Nation or the
Jicarilla Apache Nation shall not alter the construction
repayment requirements or the operation, maintenance, and
replacement payment requirements of the Project Participants.
SEC. 303. DELIVERY AND USE OF NAVAJO-GALLUP WATER SUPPLY PROJECT WATER.
(a) Use of Project Water.--
(1) In general.--In accordance with this Act and other
applicable law, water supply from the Project shall be used for
municipal, industrial, commercial, domestic, and stock watering
purposes.
(2) Use on certain land.--
(A) In general.--Subject to subparagraph (B), the
Nation may use Project water allocations on--
(i) land held by the United States in trust
for the Nation and members of the Nation; and
(ii) land held in fee by the Nation.
(B) Transfer.--The Nation may transfer the purposes
and places of use of the allocated water in accordance
with the Agreement and applicable law.
(3) Hydroelectric power.--
(A) In general.--Hydroelectric power may be generated
as an incident to the delivery of Project water for
authorized purposes under paragraph (1).
(B) Administration.--Notwithstanding any other
provision of law--
(i) any hydroelectric power generated under
this paragraph shall be used or marketed by the
Nation;
(ii) the Nation shall retain any revenues
from the sale of the hydroelectric power; and
(iii) the United States shall have no trust
obligation or other obligation to monitor,
administer, or account for the revenues
received by the Nation, or the expenditure of
the revenues.
(4) Storage.--
(A) In general.--Subject to subparagraph (B), any
water contracted for delivery under paragraph (1) that
is not needed for current water demands or uses may be
delivered by the Project for placement in underground
storage in the State of New Mexico for future recovery
and use.
(B) State approval.--Delivery of water under
subparagraph (A) is subject to--
(i) approval by the State of New Mexico under
applicable provisions of State law relating to
aquifer storage and recovery; and
(ii) the provisions of the Agreement and this
Act.
(b) Project Water and Capacity Allocations.--
(1) Diversion.--Subject to availability and consistent with
Federal and State law, the Project may divert from the Navajo
Reservoir and the San Juan River a quantity of water to be
allocated and used consistent with the Agreement and this Act,
that does not exceed in any 1 year, the lesser of--
(A) 37,760 acre-feet of water; or
(B) the quantity of water necessary to supply a
depletion from the San Juan River of 35,890 acre-feet.
(2) Project delivery capacity allocations.--
(A) In general.--The capacity of the Project shall be
allocated to the Project Participants in accordance
with subparagraphs (B) through (E), other provisions of
this Act, and other applicable law.
(B) Delivery capacity allocation to the city.--The
Project may deliver at the point of diversion from the
San Juan River not more than 7,500 acre-feet of water
in any 1 year for which the City has secured rights for
the use of the City.
(C) Delivery capacity allocation to navajo nation
communities in new mexico.--For use by the Nation in
the State of New Mexico, the Project may deliver water
out of the water rights held by the Secretary for the
Nation and confirmed under this Act, at the points of
diversion from the San Juan River or at Navajo
Reservoir in any 1 year, the lesser of--
(i) 22,650 acre-feet of water; or
(ii) the quantity of water necessary to
supply a depletion from the San Juan River of
20,780 acre-feet of water.
(D) Delivery capacity allocation to navajo nation
communities in arizona.--Subject to subsection (c), the
Project may deliver at the point of diversion from the
San Juan River not more than 6,411 acre-feet of water
in any 1 year for use by the Nation in the State of
Arizona.
(E) Delivery capacity allocation to jicarilla apache
nation.--The Project may deliver at Navajo Reservoir
not more than 1,200 acre-feet of water in any 1 year of
the water rights of the Jicarilla Apache Nation, held
by the Secretary and confirmed by the Jicarilla Apache
Tribe Water Rights Settlement Act (Public Law 102-441;
106 Stat. 2237), for use by the Jicarilla Apache Nation
in the southern portion of the Jicarilla Apache Nation
Reservation in the State of New Mexico.
(3) Use in excess of delivery capacity allocation quantity.--
Notwithstanding each delivery capacity allocation quantity
limit described in subparagraphs (B), (C), and (E) of paragraph
(2), the Secretary may authorize a Project Participant to
exceed the delivery capacity allocation quantity limit of that
Project Participant if--
(A) delivery capacity is available without impairing
any water delivery to any other Project Participant;
and
(B) the Project Participant benefitting from the
increased allocation of delivery capacity--
(i) has the right under applicable law to use
the additional water;
(ii) agrees to pay the operation,
maintenance, and replacement costs relating to
the additional use of any Project facility; and
(iii) agrees, if the Project title is held by
the Secretary, to pay a fee established by the
Secretary to assist in recovering capital costs
relating to that additional use.
(c) Conditions for Use in Arizona.--
(1) Requirements.--Project water shall not be delivered for
use by any community of the Nation located in the State of
Arizona under subsection (b)(2)(D) until--
(A) the Nation and the State of Arizona have entered
into a water rights settlement agreement approved by an
Act of Congress that specifies the allocation of
Colorado River System water to which the use in Arizona
will be charged; and
(B) the Secretary has determined by hydrologic
investigation that sufficient water is reasonably
likely to be available to supply the use in the State
of Arizona from water of the Colorado River system
allocated to the State.
(2) Accounting of uses in arizona.--Pursuant to paragraph
(1), any depletion of water from the San Juan River stream
system in the State of New Mexico that results from the
diversion of water by the Project for uses within the State of
Arizona (including depletion incidental to the diversion,
impounding, or conveyance of water in the State of New Mexico
for uses in the State of Arizona)--
(A) shall be accounted for as a part of the Colorado
River System apportionments to the State of Arizona;
and
(B) shall not increase the total quantity of water to
which the State of Arizona is entitled to use under any
compact, statute, or court decree.
(d) Forbearance.--
(1) In general.--Subject to paragraphs (2) and (3), during
any year in which a shortage to the normal diversion
requirement for any use relating to the Project within the
State of Arizona occurs (as determined under section 11 of
Public Law 87-483 (76 Stat. 99)), the Nation may temporarily
forbear the delivery of the water supply of the Navajo
Reservoir for uses in the State of New Mexico under the
apportionments of water to the Navajo Indian Irrigation Project
and the normal diversion requirements of the Project to allow
an equivalent quantity of water to be delivered from the Navajo
Reservoir water supply for municipal and domestic uses of the
Nation in the State of Arizona under the Project.
(2) Limitation of forbearance.--The Nation may forebear the
delivery of water under paragraph (1) of a quantity not
exceeding the quantity of the shortage to the normal diversion
requirement for any use relating to the Project within the
State of Arizona.
(3) Effect.--The forbearance of the delivery of water under
paragraph (1) shall be subject to the requirements in
subsection (c).
(e) Effect.--Nothing in this Act--
(1) authorizes the marketing, leasing, or transfer of the
water supplies made available to the Nation under the Contract
to non-Navajo water users in States other than the State of New
Mexico; or
(2) authorizes the forbearance of water uses in the State of
New Mexico to allow uses of water in other States other than as
authorized under subsection (d).
(f) Colorado River Compacts.--Notwithstanding any other provision of
law--
(1) water may be diverted by the Project from the San Juan
River in the State of New Mexico for use within New Mexico in
the lower basin, as that term is used in the Colorado River
Compact;
(2) any water diverted under paragraph (1) shall be a part
of, and charged against, the consumptive use apportionment made
to the State of New Mexico by Article III(a) of the Compact and
to the upper basin by Article III(a) of the Colorado River
Compact; and
(3) any water so diverted by the Project into the lower basin
within the State of New Mexico shall not be credited as water
reaching Lee Ferry pursuant to Articles III(c) and III(d) of
the Colorado River Compact.
(g) Payment of Operation, Maintenance, and Replacement Costs.--
(1) In general.--The Secretary is authorized to pay the
operation, maintenance, and replacement costs of the Project
allocable to the Project Participants under section 304 until
the date on which the Secretary declares any section of the
Project to be substantially complete and delivery of water
generated by, and through, that section of the Project can be
made to a Project participant.
(2) Project participant payments.--Beginning on the date
described in paragraph (1), each Project Participant shall pay
all allocated operation, maintenance, and replacement costs for
that substantially completed section of the Project, in
accordance with contracts entered into pursuant to section 304,
except as provided in section 304(f).
SEC. 304. PROJECT CONTRACTS.
(a) Navajo Nation Contract.--
(1) Hydrologic determination.--Congress recognizes that the
Hydrologic Determination necessary to support approval of the
Contract has been completed.
(2) Contract approval.--
(A) Approval.--
(i) In general.--Except to the extent that
any provision of the Contract conflicts with
this Act, Congress approves, ratifies, and
confirms the Contract.
(ii) Amendments.--To the extent any amendment
is executed to make the Contract consistent
with this Act, that amendment is authorized,
ratified, and confirmed.
(B) Execution of contract.--The Secretary, acting on
behalf of the United States, shall enter into the
Contract to the extent that the Contract does not
conflict with this Act (including any amendment that is
required to make the Contract consistent with this
Act).
(3) Nonreimbursability of allocated costs.--The following
costs shall be nonreimbursable and not subject to repayment by
the Nation or any other Project beneficiary:
(A) Any share of the construction costs of the Nation
relating to the Project authorized by section 302(a).
(B) Any costs relating to the construction of the
Navajo Indian Irrigation Project that may otherwise be
allocable to the Nation for use of any facility of the
Navajo Indian Irrigation Project to convey water to
each Navajo community under the Project.
(C) Any costs relating to the construction of Navajo
Dam that may otherwise be allocable to the Nation for
water deliveries under the Contract.
(4) Operation, maintenance, and replacement obligation.--
Subject to subsection (f), the Contract shall include
provisions under which the Nation shall pay any costs relating
to the operation, maintenance, and replacement of each facility
of the Project that are allocable to the Nation.
(5) Limitation, cancellation, termination, and rescission.--
The Contract may be limited by a term of years, canceled,
terminated, or rescinded only by an Act of Congress.
(b) City of Gallup Contract.--
(1) Contract authorization.--Consistent with this Act, the
Secretary is authorized to enter into a repayment contract with
the City that requires the City--
(A) to repay, within a 50-year period, the share of
the construction costs of the City relating to the
Project, with interest as provided under section 5; and
(B) consistent with section 303(g), to pay the
operation, maintenance, and replacement costs of the
Project that are allocable to the City.
(2) Contract prepayment.--
(A) In general.--The contract authorized under
paragraph (1) may allow the City to satisfy the
repayment obligation of the City for construction costs
of the Project on the payment of the share of the City
prior to the initiation of construction.
(B) Amount.--The amount of the share of the City
described in subparagraph (A) shall be determined by
agreement between the Secretary and the City.
(C) Repayment obligation.--Any repayment obligation
established by the Secretary and the City pursuant to
subparagraph (A) shall be subject to a final cost
allocation by the Secretary on project completion and
to the limitations set forth in paragraph (3).
(3) Share of construction costs.--
(A) In general.--Subject to subparagraph (B), the
Secretary shall determine the share of the construction
costs of the Project allocable to the City and
establish the percentage of the allocated construction
costs that the City shall be required to repay pursuant
to the contract entered into under paragraph (1), based
on the ability of the City to pay.
(B) Minimum percentage.--Notwithstanding subparagraph
(A), the repayment obligation of the City shall be at
least 25 percent of the construction costs of the
Project that are allocable to the City, but shall in no
event exceed 35 percent.
(4) Excess construction costs.--Any construction costs of the
Project allocable to the City in excess of the repayment
obligation of the City, as determined under paragraph (3),
shall be nonreimbursable.
(5) Grant funds.--A grant from any other Federal source shall
not be credited toward the amount required to be repaid by the
City under a repayment contract.
(6) Title transfer.--If title is transferred to the City
prior to repayment under section 302(f), the City shall be
required to provide assurances satisfactory to the Secretary of
fulfillment of the remaining repayment obligation of the City.
(7) Water delivery subcontract.--The Secretary shall not
enter into a contract under paragraph (1) with the City until
the City has secured a water supply for the City's portion of
the Project described in section 303(b)(2)(B), by entering
into, as approved by the Secretary, a water delivery
subcontract for a period of not less than 40 years beginning on
the date on which the construction of any facility of the
Project serving the City is completed, with--
(A) the Nation, as authorized by the Contract;
(B) the Jicarilla Apache Nation, as authorized by the
settlement contract between the United States and the
Jicarilla Apache Tribe, authorized by the Jicarilla
Apache Tribe Water Rights Settlement Act (Public Law
102-441; 106 Stat. 2237); or
(C) an acquired alternate source of water, subject to
approval of the Secretary and the State of New Mexico,
acting through the New Mexico Interstate Stream
Commission and the New Mexico State Engineer.
(c) Jicarilla Apache Nation Contract.--
(1) Contract authorization.--Consistent with this Act, the
Secretary is authorized to enter into a repayment contract with
the Jicarilla Apache Nation that requires the Jicarilla Apache
Nation--
(A) to repay, within a 50-year period, the share of
any construction cost of the Jicarilla Apache Nation
relating to the Project, with interest as provided
under section 5; and
(B) consistent with section 303(g), to pay the
operation, maintenance, and replacement costs of the
Project that are allocable to the Jicarilla Apache
Nation.
(2) Contract prepayment.--
(A) In general.--The contract authorized under
paragraph (1) may allow the Jicarilla Apache Nation to
satisfy the repayment obligation of the Jicarilla
Apache Nation for construction costs of the Project on
the payment of the share of the Jicarilla Apache Nation
prior to the initiation of construction.
(B) Amount.--The amount of the share of Jicarilla
Apache Nation described in subparagraph (A) shall be
determined by agreement between the Secretary and the
Jicarilla Apache Nation.
(C) Repayment obligation.--Any repayment obligation
established by the Secretary and the Jicarilla Apache
Nation pursuant to subparagraph (A) shall be subject to
a final cost allocation by the Secretary on project
completion and to the limitations set forth in
paragraph (3).
(3) Share of construction costs.--
(A) In general.--Subject to subparagraph (B), the
Secretary shall determine the share of the construction
costs of the Project allocable to the Jicarilla Apache
Nation and establish the percentage of the allocated
construction costs of the Jicarilla Apache Nation that
the Jicarilla Apache Nation shall be required to repay
based on the ability of the Jicarilla Apache Nation to
pay.
(B) Minimum percentage.--Notwithstanding subparagraph
(A), the repayment obligation of the Jicarilla Apache
Nation shall be at least 25 percent of the construction
costs of the Project that are allocable to the
Jicarilla Apache Nation, but shall in no event exceed
35 percent.
(4) Excess construction costs.--Any construction costs of the
Project allocable to the Jicarilla Apache Nation in excess of
the repayment obligation of the Jicarilla Apache Nation as
determined under paragraph (3), shall be nonreimbursable.
(5) Grant funds.--A grant from any other Federal source shall
not be credited toward the share of the Jicarilla Apache Nation
of construction costs.
(6) Navajo indian irrigation project costs.--The Jicarilla
Apache Nation shall have no obligation to repay any Navajo
Indian Irrigation Project construction costs that might
otherwise be allocable to the Jicarilla Apache Nation for use
of the Navajo Indian Irrigation Project facilities to convey
water to the Jicarilla Apache Nation, and any such costs shall
be nonreimbursable.
(d) Capital Cost Allocations.--
(1) In general.--For purposes of estimating the capital
repayment requirements of the Project Participants under this
section, the Secretary shall review and, as appropriate, update
the Draft Impact Statement allocating capital construction
costs for the Project.
(2) Final cost allocation.--The repayment contracts entered
into with Project Participants under this section shall require
that the Secretary perform a final cost allocation when
construction of the Project is determined to be substantially
complete.
(3) Repayment obligation.--The Secretary shall determine the
repayment obligation of the Project Participants based on the
final cost allocation identifying reimbursable and
nonreimbursable capital costs of the Project consistent with
this Act.
(e) Operation, Maintenance, and Replacement Cost Allocations.--For
purposes of determining the operation, maintenance, and replacement
obligations of the Project Participants under this section, the
Secretary shall review and, as appropriate, update the Draft Impact
Statement that allocates operation, maintenance, and replacement costs
for the Project.
(f) Temporary Waivers of Payments.--
(1) In general.--On the date on which the Secretary declares
a section of the Project to be substantially complete and
delivery of water generated by and through that section of the
Project can be made to the Nation, the Secretary may waive, for
a period of not more than 10 years, the operation, maintenance,
and replacement costs allocable to the Nation for that section
of the Project that the Secretary determines are in excess of
the ability of the Nation to pay.
(2) Subsequent payment by nation.--After a waiver under
paragraph (1), the Nation shall pay all allocated operation,
maintenance, and replacement costs of that section of the
Project.
(3) Payment by united states.--Any operation, maintenance, or
replacement costs waived by the Secretary under paragraph (1)
shall be paid by the United States and shall be
nonreimbursable.
(4) Effect on contracts.--Failure of the Secretary to waive
costs under paragraph (1) because of a lack of availability of
Federal funding to pay the costs under paragraph (3) shall not
alter the obligations of the Nation or the United States under
a repayment contract.
(5) Termination of authority.--The authority of the Secretary
to waive costs under paragraph (1) with respect to a Project
facility transferred to the Nation under section 302(f) shall
terminate on the date on which the Project facility is
transferred.
(g) Project Construction Committee.--The Secretary shall facilitate
the formation of a project construction committee with the Project
Participants and the State of New Mexico--
(1) to review cost factors and budgets for construction and
operation and maintenance activities;
(2) to improve construction management through enhanced
communication; and
(3) to seek additional ways to reduce overall Project costs.
SEC. 305. NAVAJO NATION MUNICIPAL PIPELINE.
(a) Use of Navajo Nation Pipeline.--In addition to use of the Navajo
Nation Municipal Pipeline to convey the Animas-La Plata Project water
of the Nation, the Nation may use the Navajo Nation Municipal Pipeline
to convey non-Animas La Plata Project water for municipal and
industrial purposes.
(b) Conveyance of Title to Pipeline.--
(1) In general.--On completion of the Navajo Nation Municipal
Pipeline, the Secretary may enter into separate agreements with
the City of Farmington, New Mexico and the Nation to convey
title to each portion of the Navajo Nation Municipal Pipeline
facility or section of the Pipeline to the City of Farmington
and the Nation after execution of a Project operations
agreement approved by the Secretary, the Nation, and the City
of Farmington that sets forth any terms and conditions that the
Secretary determines are necessary.
(2) Conveyance to the city of farmington or navajo nation.--
In conveying title to the Navajo Nation Municipal Pipeline
under this subsection, the Secretary shall convey--
(A) to the City of Farmington, the facilities and any
land or interest in land acquired by the United States
for the construction, operation, and maintenance of the
Pipeline that are located within the corporate
boundaries of the City; and
(B) to the Nation, the facilities and any land or
interests in land acquired by the United States for the
construction, operation, and maintenance of the
Pipeline that are located outside the corporate
boundaries of the City of Farmington.
(3) Effect of conveyance.--The conveyance of title to the
Pipeline shall not affect the application of the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.) relating to the
use of water associated with the Animas-La Plata Project.
(4) Liability.--
(A) In general.--Effective on the date of the
conveyance authorized by this subsection, the United
States shall not be held liable by any court for
damages of any kind arising out of any act, omission,
or occurrence relating to the land, buildings, or
facilities conveyed under this subsection, other than
damages caused by acts of negligence committed by the
United States or by employees or agents of the United
States prior to the date of conveyance.
(B) Tort claims.--Nothing in this subsection
increases the liability of the United States beyond the
liability provided under chapter 171 of title 28,
United States Code (commonly known as the ``Federal
Tort Claims Act'').
(5) Notice of proposed conveyance.--Not later than 45 days
before the date of a proposed conveyance of title to the
Pipeline, the Secretary shall submit to the Committee on
Natural Resources of the House of Representatives and the
Committee on Energy and Natural Resources of the Senate, notice
of the conveyance of the Pipeline.
SEC. 306. AUTHORIZATION OF CONJUNCTIVE USE WELLS.
(a) Conjunctive Groundwater Development Plan.--Not later than 1 year
after the date of enactment of this Act, the Nation, in consultation
with the Secretary, shall complete a conjunctive groundwater
development plan for the wells described in subsections (b) and (c).
(b) Wells in the San Juan River Basin.--In accordance with the
conjunctive groundwater development plan, the Secretary may construct
or rehabilitate wells and related pipeline facilities to provide
capacity for the diversion and distribution of not more than 1,670
acre-feet of groundwater in the San Juan River Basin in the State of
New Mexico for municipal and domestic uses.
(c) Wells in the Little Colorado and Rio Grande Basins.--
(1) In general.--In accordance with the Project and
conjunctive groundwater development plan for the Nation, the
Secretary may construct or rehabilitate wells and related
pipeline facilities to provide capacity for the diversion and
distribution of--
(A) not more than 680 acre-feet of groundwater in the
Little Colorado River Basin in the State of New Mexico;
(B) not more than 80 acre-feet of groundwater in the
Rio Grande Basin in the State of New Mexico; and
(C) not more than 770 acre-feet of groundwater in the
Little Colorado River Basin in the State of Arizona.
(2) Use.--Groundwater diverted and distributed under
paragraph (1) shall be used for municipal and domestic uses.
(d) Acquisition of Land.--
(1) In general.--Except as provided in paragraph (2), the
Secretary may acquire any land or interest in land that is
necessary for the construction, operation, and maintenance of
the wells and related pipeline facilities authorized under
subsections (b) and (c).
(2) Limitation.--Nothing in this subsection authorizes the
Secretary to condemn water rights for the purposes described in
paragraph (1).
(e) Condition.--The Secretary shall not commence any construction
activity relating to the wells described in subsections (b) and (c)
until the Secretary executes the Agreement.
(f) Conveyance of Wells.--
(1) In general.--On the determination of the Secretary that
the wells and related facilities are substantially complete and
delivery of water generated by the wells can be made to the
Nation, an agreement with the Nation shall be entered into, to
convey to the Nation title to--
(A) any well or related pipeline facility constructed
or rehabilitated under subsections (a) and (b) after
the wells and related facilities have been completed;
and
(B) any land or interest in land acquired by the
United States for the construction, operation, and
maintenance of the well or related pipeline facility.
(2) Operation, maintenance, and replacement.--
(A) In general.--The Secretary is authorized to pay
operation and maintenance costs for the wells and
related pipeline facilities authorized under this
subsection until title to the facilities is conveyed to
the Nation.
(B) Subsequent assumption by nation.--On completion
of a conveyance of title under paragraph (1), the
Nation shall assume all responsibility for the
operation and maintenance of the well or related
pipeline facility conveyed.
(3) Effect of conveyance.--The conveyance of title to the
Nation of the conjunctive use wells under paragraph (1) shall
not affect the application of the Endangered Species Act of
1973 (16 U.S.C. 1531 et seq.).
(g) Use of Project Facilities.--The capacities of the treatment
facilities, main pipelines, and lateral pipelines of the Project
authorized by section 302(b) may be used to treat and convey
groundwater to Nation communities if the Nation provides for payment of
the operation, maintenance, and replacement costs associated with the
use of the facilities or pipelines.
(h) Limitations.--The diversion and use of groundwater by wells
constructed or rehabilitated under this section shall be made in a
manner consistent with applicable Federal and State law.
SEC. 307. SAN JUAN RIVER NAVAJO IRRIGATION PROJECTS.
(a) Rehabilitation.--Subject to subsection (b), the Secretary shall
rehabilitate--
(1) the Fruitland-Cambridge Irrigation Project to serve not
more than 3,335 acres of land, which shall be considered to be
the total serviceable area of the project; and
(2) the Hogback-Cudei Irrigation Project to serve not more
than 8,830 acres of land, which shall be considered to be the
total serviceable area of the project.
(b) Condition.--The Secretary shall not commence any construction
activity relating to the rehabilitation of the Fruitland-Cambridge
Irrigation Project or the Hogback-Cudei Irrigation Project under
subsection (a) until the Secretary executes the Agreement.
(c) Operation, Maintenance, and Replacement Obligation.--The Nation
shall continue to be responsible for the operation, maintenance, and
replacement of each facility rehabilitated under this section.
SEC. 308. OTHER IRRIGATION PROJECTS.
(a) In General.--Not later than 2 years after the date of enactment
of this Act, the Secretary, in consultation with the State of New
Mexico (acting through the Interstate Stream Commission) and the Non-
Navajo Irrigation Districts that elect to participate, shall--
(1) conduct a study of Non-Navajo Irrigation District
diversion and ditch facilities; and
(2) based on the study, identify and prioritize a list of
projects, with associated cost estimates, that are recommended
to be implemented to repair, rehabilitate, or reconstruct
irrigation diversion and ditch facilities to improve water use
efficiency.
(b) Grants.--The Secretary may provide grants to, and enter into
cooperative agreements with, the Non-Navajo Irrigation Districts to
plan, design, or otherwise implement the projects identified under
subsection (a)(2).
(c) Cost-Sharing.--
(1) Federal share.--The Federal share of the total cost of
carrying out a project under subsection (b) shall be not more
than 50 percent, and shall be nonreimbursable.
(2) Form.--The non-Federal share required under paragraph (1)
may be in the form of in-kind contributions, including the
contribution of any valuable asset or service that the
Secretary determines would substantially contribute to a
project carried out under subsection (b).
(3) State contribution.--The Secretary may accept from the
State of New Mexico a partial or total contribution toward the
non-Federal share for a project carried out under subsection
(b).
SEC. 309. AUTHORIZATION OF APPROPRIATIONS.
(a) Authorization of Appropriations for Navajo-Gallup Water Supply
Project.--
(1) In general.--There is authorized to be appropriated to
the Secretary to plan, design, and construct the Project
$870,000,000 for the period of fiscal years 2009 through 2024,
to remain available until expended.
(2) Adjustments.--The amount under paragraph (1) shall be
adjusted by such amounts as may be required by reason of
changes since 2007 in construction costs, as indicated by
engineering cost indices applicable to the types of
construction involved.
(3) Use.--In addition to the uses authorized under paragraph
(1), amounts made available under that paragraph may be used
for the conduct of related activities to comply with Federal
environmental laws.
(4) Operation and maintenance.--
(A) In general.--There are authorized to be
appropriated such sums as are necessary to operate and
maintain the Project consistent with this Act.
(B) Expiration.--The authorization under subparagraph
(A) shall expire 10 years after the year the Secretary
declares the Project to be substantially complete.
(b) Appropriations for Conjunctive Use Wells.--
(1) San juan wells.--There is authorized to be appropriated
to the Secretary for the construction or rehabilitation and
operation and maintenance of conjunctive use wells under
section 306(b) $30,000,000, as adjusted under paragraph (3),
for the period of fiscal years 2009 through 2019.
(2) Wells in the little colorado and rio grande basins.--
There are authorized to be appropriated to the Secretary for
the construction or rehabilitation and operation and
maintenance of conjunctive use wells under section 306(c) such
sums as are necessary for the period of fiscal years 2009
through 2024.
(3) Adjustments.--The amount under paragraph (1) shall be
adjusted by such amounts as may be required by reason of
changes since 2008 in construction costs, as indicated by
engineering cost indices applicable to the types of
construction or rehabilitation involved.
(4) Nonreimbursable expenditures.--Amounts made available
under paragraphs (1) and (2) shall be nonreimbursable to the
United States.
(5) Use.--In addition to the uses authorized under paragraphs
(1) and (2), amounts made available under that paragraph may be
used for the conduct of related activities to comply with
Federal environmental laws.
(6) Limitation.--Appropriations authorized under paragraph
(1) shall not be used for operation or maintenance of any
conjunctive use wells at a time in excess of 3 years after the
well is declared substantially complete.
(c) San Juan River Irrigation Projects.--
(1) In general.--There are authorized to be appropriated to
the Secretary--
(A) to carry out section 307(a)(1), not more than
$7,700,000, as adjusted under paragraph (2), for the
period of fiscal years 2009 through 2015, to remain
available until expended; and
(B) to carry out section 307(a)(2), not more than
$15,400,000, as adjusted under paragraph (2), for the
period of fiscal years 2009 through 2018, to remain
available until expended.
(2) Adjustment.--The amounts made available under paragraph
(1) shall be adjusted by such amounts as may be required by
reason of changes since January 1, 2004, in construction costs,
as indicated by engineering cost indices applicable to the
types of construction involved in the rehabilitation.
(3) Nonreimbursable expenditures.--Amounts made available
under this subsection shall be nonreimbursable to the United
States.
(d) Other Irrigation Projects.--There are authorized to be
appropriated to the Secretary to carry out section 308 $11,000,000 for
the period of fiscal years 2009 through 2018.
(e) Cultural Resources.--
(1) In general.--The Secretary may use not more than 2
percent of amounts made available under subsections (a), (b),
and (c) for the survey, recovery, protection, preservation, and
display of archaeological resources in the area of a Project
facility or conjunctive use well.
(2) Nonreimbursable expenditures.--Any amounts made available
under paragraph (1) shall be nonreimbursable.
(f) Fish and Wildlife Facilities.--
(1) In general.--In association with the development of the
Project, the Secretary may use not more than 4 percent of
amounts made available under subsections (a), (b), and (c) to
purchase land and construct and maintain facilities to mitigate
the loss of, and improve conditions for the propagation of,
fish and wildlife if any such purchase, construction, or
maintenance will not affect the operation of any water project
or use of water.
(2) Nonreimbursable expenditures.--Any amounts expended under
paragraph (1) shall be nonreimbursable.
TITLE IV--NAVAJO NATION WATER RIGHTS
SEC. 401. AGREEMENT.
(a) Agreement Approval.--
(1) Approval by congress.--Except to the extent that any
provision of the Agreement conflicts with this Act, Congress
approves, ratifies, and confirms the Agreement (including any
amendments to the Agreement that are executed to make the
Agreement consistent with this Act).
(2) Execution by secretary.--The Secretary shall enter into
the Agreement to the extent that the Agreement does not
conflict with this Act, including--
(A) any exhibits to the Agreement requiring the
signature of the Secretary; and
(B) any amendments to the Agreement necessary to make
the Agreement consistent with this Act.
(3) Authority of secretary.--The Secretary may carry out any
action that the Secretary determines is necessary or
appropriate to implement the Agreement, the Contract, and this
section.
(4) Administration of navajo reservoir releases.--The State
of New Mexico may administer water that has been released from
storage in Navajo Reservoir in accordance with subparagraph 9.1
of the Agreement.
(b) Water Available Under Contract.--
(1) Quantities of water available.--
(A) In general.--Water shall be made available
annually under the Contract for projects in the State
of New Mexico supplied from the Navajo Reservoir and
the San Juan River (including tributaries of the River)
under New Mexico State Engineer File Numbers 2849,
2883, and 3215 in the quantities described in
subparagraph (B).
(B) Water quantities.--The quantities of water
referred to in subparagraph (A) are as follows:
------------------------------------------------------------------------
Diversion Depletion
(acre- (acre-
feet/ feet/
year) year)
------------------------------------------------------------------------
Navajo Indian Irrigation Project 508,000 270,000
Navajo-Gallup Water Supply Project 22,650 20,780
Animas-La Plata Project 4,680 2,340
Total 535,330 293,120
------------------------------------------------------------------------
(C) Maximum quantity.--A diversion of water to the
Nation under the Contract for a project described in
subparagraph (B) shall not exceed the quantity of water
necessary to supply the amount of depletion for the
project.
(D) Terms, conditions, and limitations.--The
diversion and use of water under the Contract shall be
subject to and consistent with the terms, conditions,
and limitations of the Agreement, this Act, and any
other applicable law.
(2) Amendments to contract.--The Secretary, with the consent
of the Nation, may amend the Contract if the Secretary
determines that the amendment is--
(A) consistent with the Agreement; and
(B) in the interest of conserving water or
facilitating beneficial use by the Nation or a
subcontractor of the Nation.
(3) Rights of the nation.--The Nation may, under the
Contract--
(A) use tail water, wastewater, and return flows
attributable to a use of the water by the Nation or a
subcontractor of the Nation if--
(i) the depletion of water does not exceed
the quantities described in paragraph (1); and
(ii) the use of tail water, wastewater, or
return flows is consistent with the terms,
conditions, and limitations of the Agreement,
and any other applicable law; and
(B) change a point of diversion, change a purpose or
place of use, and transfer a right for depletion under
this Act (except for a point of diversion, purpose or
place of use, or right for depletion for use in the
State of Arizona under section 303(b)(2)(D)), to
another use, purpose, place, or depletion in the State
of New Mexico to meet a water resource or economic need
of the Nation if--
(i) the change or transfer is subject to and
consistent with the terms of the Agreement, the
Partial Final Decree described in paragraph 3.0
of the Agreement, the Contract, and any other
applicable law; and
(ii) a change or transfer of water use by the
Nation does not alter any obligation of the
United States, the Nation, or another party to
pay or repay project construction, operation,
maintenance, or replacement costs under this
Act and the Contract.
(c) Subcontracts.--
(1) In general.--
(A) Subcontracts between nation and third parties.--
The Nation may enter into subcontracts for the delivery
of Project water under the Contract to third parties
for any beneficial use in the State of New Mexico (on
or off land held by the United States in trust for the
Nation or a member of the Nation or land held in fee by
the Nation).
(B) Approval required.--A subcontract entered into
under subparagraph (A) shall not be effective until
approved by the Secretary in accordance with this
subsection and the Contract.
(C) Submittal.--The Nation shall submit to the
Secretary for approval or disapproval any subcontract
entered into under this subsection.
(D) Deadline.--The Secretary shall approve or
disapprove a subcontract submitted to the Secretary
under subparagraph (C) not later than the later of--
(i) the date that is 180 days after the date
on which the subcontract is submitted to the
Secretary; and
(ii) the date that is 60 days after the date
on which a subcontractor complies with--
(I) section 102(2)(C) of the National
Environmental Policy Act of 1969 (42
U.S.C. 4332(2)(C)); and
(II) any other requirement of Federal
law.
(E) Enforcement.--A party to a subcontract may
enforce the deadline described in subparagraph (D)
under section 1361 of title 28, United States Code.
(F) Compliance with other law.--A subcontract
described in subparagraph (A) shall comply with the
Agreement, the Partial Final Decree described in
paragraph 3.0 of the Agreement, and any other
applicable law.
(G) No liability.--The Secretary shall not be liable
to any party, including the Nation, for any term of, or
any loss or other detriment resulting from, a lease,
contract, or other agreement entered into pursuant to
this subsection.
(2) Alienation.--
(A) Permanent alienation.--The Nation shall not
permanently alienate any right granted to the Nation
under the Contract.
(B) Maximum term.--The term of any water use
subcontract (including a renewal) under this subsection
shall be not more than 99 years.
(3) Nonintercourse act compliance.--This subsection--
(A) provides congressional authorization for the
subcontracting rights of the Nation; and
(B) is deemed to fulfill any requirement that may be
imposed by section 2116 of the Revised Statutes (25
U.S.C. 177).
(4) Forfeiture.--The nonuse of the water supply secured by a
subcontractor of the Nation under this subsection shall not
result in forfeiture, abandonment, relinquishment, or other
loss of any part of a right decreed to the Nation under the
Contract or this section.
(5) No per capita payments.--No part of the revenue from a
water use subcontract under this subsection shall be
distributed to any member of the Nation on a per capita basis.
(d) Water Leases Not Requiring Subcontracts.--
(1) Authority of nation.--
(A) In general.--The Nation may lease, contract, or
otherwise transfer to another party or to another
purpose or place of use in the State of New Mexico (on
or off land that is held by the United States in trust
for the Nation or a member of the Nation or held in fee
by the Nation) a water right that--
(i) is decreed to the Nation under the
Agreement; and
(ii) is not subject to the Contract.
(B) Compliance with other law.--In carrying out an
action under this subsection, the Nation shall comply
with the Agreement, the Partial Final Decree described
in paragraph 3.0 of the Agreement, the Supplemental
Partial Final Decree described in paragraph 4.0 of the
Agreement, and any other applicable law.
(2) Alienation; maximum term.--
(A) Alienation.--The Nation shall not permanently
alienate any right granted to the Nation under the
Agreement.
(B) Maximum term.--The term of any water use lease,
contract, or other arrangement (including a renewal)
under this subsection shall be not more than 99 years.
(3) No liability.--The Secretary shall not be liable to any
party, including the Nation, for any term of, or any loss or
other detriment resulting from, a lease, contract, or other
agreement entered into pursuant to this subsection.
(4) Nonintercourse act compliance.--This subsection--
(A) provides congressional authorization for the
lease, contracting, and transfer of any water right
described in paragraph (1)(A); and
(B) is deemed to fulfill any requirement that may be
imposed by the provisions of section 2116 of the
Revised Statutes (25 U.S.C. 177).
(5) Forfeiture.--The nonuse of a water right of the Nation by
a lessee or contractor to the Nation under this subsection
shall not result in forfeiture, abandonment, relinquishment, or
other loss of any part of a right decreed to the Nation under
the Contract or this section.
(e) Nullification.--
(1) Deadlines.--
(A) In general.--In carrying out this section, the
following deadlines apply with respect to
implementation of the Agreement:
(i) Agreement.--Not later than December 31,
2009, the Secretary shall execute the
Agreement.
(ii) Contract.--Not later than December 31,
2009, the Secretary and the Nation shall
execute the Contract.
(iii) Partial final decree.--Not later than
December 31, 2012, the court in the stream
adjudication shall have entered the Partial
Final Decree described in paragraph 3.0 of the
Agreement.
(iv) Fruitland-cambridge irrigation
project.--Not later than December 31, 2015, the
rehabilitation construction of the Fruitland-
Cambridge Irrigation Project authorized under
section 307(a)(1) shall be completed.
(v) Supplemental partial final decree.--Not
later than December 31, 2015, the court in the
stream adjudication shall enter the
Supplemental Partial Final Decree described in
subparagraph 4.0 of the Agreement.
(vi) Hogback-cudei irrigation project.--Not
later than December 31, 2018, the
rehabilitation construction of the Hogback-
Cudei Irrigation Project authorized under
section 307(a)(2) shall be completed.
(vii) Trust fund.--Not later than December
31, 2019, the United States shall make all
deposits into the Trust Fund under section 402.
(viii) Conjunctive wells.--Not later than
December 31, 2019, the funds authorized to be
appropriated under section 309(b)(1) for the
conjunctive use wells authorized under section
306(b) should be appropriated.
(ix) Navajo-gallup water supply project.--Not
later than December 31, 2024, the construction
of all Project facilities shall be completed.
(B) Extension.--A deadline described in subparagraph
(A) may be extended if the Nation, the United States
(acting through the Secretary), and the State of New
Mexico (acting through the New Mexico Interstate Stream
Commission) agree that an extension is reasonably
necessary.
(2) Revocability of agreement, contract and authorizations.--
(A) Petition.--If the Nation determines that a
deadline described in paragraph (1)(A) is not
substantially met, the Nation may submit to the court
in the stream adjudication a petition to enter an order
terminating the Agreement and Contract.
(B) Termination.--On issuance of an order to
terminate the Agreement and Contract under subparagraph
(A)--
(i) the Trust Fund shall be terminated;
(ii) the balance of the Trust Fund shall be
deposited in the general fund of the Treasury;
(iii) the authorizations for construction and
rehabilitation of water projects under this Act
shall be revoked and any Federal activity
related to that construction and rehabilitation
shall be suspended; and
(iv) this title and titles I and III shall be
null and void.
(3) Conditions not causing nullification of settlement.--
(A) In general.--If a condition described in
subparagraph (B) occurs, the Agreement and Contract
shall not be nullified or terminated.
(B) Conditions.--The conditions referred to in
subparagraph (A) are as follows:
(i) A lack of right to divert at the
capacities of conjunctive use wells constructed
or rehabilitated under section 306.
(ii) A failure--
(I) to determine or resolve an
accounting of the use of water under
this Act in the State of Arizona;
(II) to obtain a necessary water
right for the consumptive use of water
in Arizona;
(III) to contract for the delivery of
water for use in Arizona; or
(IV) to construct and operate a
lateral facility to deliver water to a
community of the Nation in Arizona,
under the Project.
(f) Effect on Rights of Indian Tribes.--
(1) In general.--Except as provided in paragraph (2), nothing
in the Agreement, the Contract, or this section quantifies or
adversely affects the land and water rights, or claims or
entitlements to water, of any Indian tribe or community other
than the rights, claims, or entitlements of the Nation in, to,
and from the San Juan River Basin in the State of New Mexico.
(2) Exception.--The right of the Nation to use water under
water rights the Nation has in other river basins in the State
of New Mexico shall be forborne to the extent that the Nation
supplies the uses for which the water rights exist by
diversions of water from the San Juan River Basin under the
Project consistent with subparagraph 9.13 of the Agreement.
SEC. 402. TRUST FUND.
(a) Establishment.--There is established in the Treasury a fund to be
known as the ``Navajo Nation Water Resources Development Trust Fund'',
consisting of--
(1) such amounts as are appropriated to the Trust Fund under
subsection (f); and
(2) any interest earned on investment of amounts in the Trust
Fund under subsection (d).
(b) Use of Funds.--The Nation may use amounts in the Trust Fund--
(1) to investigate, construct, operate, maintain, or replace
water project facilities, including facilities conveyed to the
Nation under this Act and facilities owned by the United States
for which the Nation is responsible for operation, maintenance,
and replacement costs; and
(2) to investigate, implement, or improve a water
conservation measure (including a metering or monitoring
activity) necessary for the Nation to make use of a water right
of the Nation under the Agreement.
(c) Management.--The Secretary shall manage the Trust Fund, invest
amounts in the Trust Fund, and make amounts available from the Trust
Fund for distribution to the Nation in accordance with the American
Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et
seq.).
(d) Investment of the Trust Fund.--The Secretary shall invest amounts
in the Trust Fund in accordance with--
(1) the Act of April 1, 1880 (25 U.S.C. 161);
(2) the first section of the Act of June 24, 1938 (25 U.S.C.
162a); and
(3) the American Indian Trust Fund Management Reform Act of
1994 (25 U.S.C. 4001 et seq.).
(e) Conditions for Expenditures and Withdrawals.--
(1) Tribal management plan.--
(A) In general.--Subject to paragraph (7), on
approval by the Secretary of a tribal management plan
in accordance with the American Indian Trust Fund
Management Reform Act of 1994 (25 U.S.C. 4001 et seq.),
the Nation may withdraw all or a portion of the amounts
in the Trust Fund.
(B) Requirements.--In addition to any requirements
under the American Indian Trust Fund Management Reform
Act of 1994 (25 U.S.C. 4001 et seq.), the tribal
management plan shall require that the Nation only use
amounts in the Trust Fund for the purposes described in
subsection (b), including the identification of water
conservation measures to be implemented in association
with the agricultural water use of the Nation.
(2) Enforcement.--The Secretary may take judicial or
administrative action to enforce the provisions of any tribal
management plan to ensure that any amounts withdrawn from the
Trust Fund are used in accordance with this Act.
(3) No liability.--Neither the Secretary nor the Secretary of
the Treasury shall be liable for the expenditure or investment
of any amounts withdrawn from the Trust Fund by the Nation.
(4) Expenditure plan.--
(A) In general.--The Nation shall submit to the
Secretary for approval an expenditure plan for any
portion of the amounts in the Trust Fund made available
under this section that the Nation does not withdraw
under this subsection.
(B) Description.--The expenditure plan shall describe
the manner in which, and the purposes for which, funds
of the Nation remaining in the Trust Fund will be used.
(C) Approval.--On receipt of an expenditure plan
under subparagraph (A), the Secretary shall approve the
plan if the Secretary determines that the plan is
reasonable and consistent with this Act.
(5) Annual report.--The Nation shall submit to the Secretary
an annual report that describes any expenditures from the Trust
Fund during the year covered by the report.
(6) Limitation.--No portion of the amounts in the Trust Fund
shall be distributed to any Nation member on a per capita
basis.
(7) Conditions.--Any amount authorized to be appropriated to
the Trust Fund under subsection (f) shall not be available for
expenditure or withdrawal--
(A) before December 31, 2019; and
(B) until the date on which the court in the stream
adjudication has entered--
(i) the Partial Final Decree; and
(ii) the Supplemental Partial Final Decree.
(f) Authorization of Appropriations.--There are authorized to be
appropriated for deposit in the Trust Fund--
(1) $6,000,000 for each of fiscal years 2009 through 2013;
and
(2) $4,000,000 for each of fiscal years 2014 through 2018.
SEC. 403. WAIVERS AND RELEASES.
(a) Claims by the Nation and the United States.--The Nation, on
behalf of itself and members of the Nation (other than members in the
capacity of the members as allottees), and the United States, acting
through the Secretary and in the capacity of the United States as
trustee for the Nation, shall each execute a waiver and release of--
(1) all claims for water rights in, or for waters of, the San
Juan River Basin in the State of New Mexico that the Nation, or
the United States as trustee for the Nation, asserted, or could
have asserted, in the San Juan River adjudication or in any
other court proceeding;
(2) all claims that the Nation, or the United States as
trustee for the Nation, has asserted or could assert for any
damage, loss, or injury to water rights or claims of
interference, diversion, or taking of water in the San Juan
Basin in the State of New Mexico that, regardless of whether
the damage, loss, or injury is unanticipated, unexpected, or
unknown--
(A) accrued at any time before or on the effective
date of the waiver and release under subsection (d);
and
(B) may or may not be more numerous or more serious
than is understood or expected; and
(3) all claims of any damage, loss, or injury or for
injunctive or other relief because of the condition of or
changes in water quality related to, or arising out of, the
exercise of water rights.
(b) Claims by the Nation Against the United States.--The Nation, on
behalf of itself and its members (other than members in the capacity of
the members as allottees), shall execute a waiver and release of--
(1) all causes of action that the Nation or the members of
the Nation (other than members in the capacity of the members
as allottees) may have against the United States or any
agencies or employees of the United States, arising out of
claims for water rights in, or waters of, the San Juan River
Basin in the State of New Mexico that the United States
asserted, or could have asserted, in the stream adjudication or
other court proceeding;
(2) all claims for any damage, loss, or injury to water
rights, claims of interference, diversion or taking of water,
or failure to protect, acquire, or develop water or water
rights for land within the San Juan Basin in the State of New
Mexico that, regardless whether the damage, loss, or injury is
unanticipated, unexpected, or unknown--
(A) accrued at any time before or on the effective
date of the waiver and release under subsection (d);
and
(B) may or may not be more numerous or more serious
than is understood or expected; and
(3) all claims arising out of, resulting from, or relating in
any manner to the negotiation, execution or adoption of the
Agreement, the Contract, or this Act (including any specific
terms and provisions of the Agreement, the Contract, or this
Act) that the Nation may have against the United States or any
agencies or employees of the United States.
(c) Reservation of Claims.--Notwithstanding subsections (a) and (b),
the Nation and the members of the Nation (including members in the
capacity of the members as allottees) and the United States, as trustee
for the Nation and allottees, shall retain--
(1) all claims for water rights or injuries to water rights
arising out of activities occurring outside the San Juan River
Basin in the State of New Mexico, subject to paragraphs 8.0,
9.3, 9.12, 9.13 and 13.9 of the Agreement;
(2) all claims for enforcement of the Agreement, the
Contract, the Partial Final Decree, the Supplemental Partial
Final Decree, or this Act, through any legal and equitable
remedies available in any court of competent jurisdiction;
(3) all rights to use and protect water rights acquired
pursuant to State law after the effective date of the waivers
and releases described in subsection (d);
(4) all claims relating to activities affecting the quality
of water not related to the exercise of water rights; and
(5) all rights, remedies, privileges, immunities, and powers
not specifically waived and released under the terms of the
Agreement or this Act.
(d) Effective Date.--
(1) In general.--The waivers and releases described in
subsection (a) shall be effective on the date on which the
Secretary publishes in the Federal Register a statement of
findings documenting that each of the deadlines described in
section 401(e)(1) have been met.
(2) Deadline.--If the deadlines in section 401(e)(1)(A) have
not been met by the later of March 1, 2025, or the date of any
extension under section 401(e)(1)(B)--
(A) the waivers and releases described in subsection
(a) shall be of no effect; and
(B) section 401(e)(2)(B) shall apply.
SEC. 404. WATER RIGHTS HELD IN TRUST.
A tribal water right adjudicated and described in paragraph 3.0 of
the Partial Final Decree and in paragraph 3.0 of the Supplemental
Partial Final Decree shall be held in trust by the United States on
behalf of the Nation.
Purpose of the Measure
The purpose of S. 1171 is to amend the Colorado River
Storage Project Act and Public Law 87-483 to authorize the
construction and rehabilitation of water infrastructure in
Northwestern New Mexico, to authorize the use of the
reclamation fund to fund the Reclamation Water Settlements
Fund, to authorize the conveyance of certain Reclamation land
and infrastructure, to authorize the Commissioner of
Reclamation to provide for the delivery of water, and for other
purposes.
Background and Need
In 1975, the State of New Mexico initiated a general stream
adjudication to determine the quantity and priority of water
rights in the San Juan River basin in New Mexico (State of New
Mexico v. United States of America, Civ. No. 75-184 (11th
Judicial Dist.)). The San Juan River is a tributary of the
Colorado River and flows through the northwest portion of the
state. The adjudication has been pending for over thirty years,
and S. 1171 would implement a settlement to resolve the Navajo
Nation's water rights, the largest claims in the adjudication.
The basis for the legislation is a settlement agreement
executed by the Navajo Nation and the State of New Mexico on
April 19, 2005, which requires Federal legislation to take
effect. The agreement recognizes approximately 600,000 acre-
feet per year (afy) of water rights available to the Navajo
Nation for agricultural, municipal, industrial, domestic, and
stock watering purposes, in return for a waiver of additional
water rights and associated liability claims. A majority of the
Navajo rights that would be adjudicated through the settlement
have been recognized by prior federal laws, some of which are
now proposed for amendment by S. 1171. The most significant of
these is Public Law 87-483 (1962) which authorized construction
of the Navajo Indian Irrigation Project (NIIP). The water
supply for NIIP is provided by Navajo Reservoir, a Bureau of
Reclamation project authorized by the 1956 Colorado River
Storage Project Act. Public Law 87-483 also recognized the
existence of several other Navajo irrigation projects,
encompassing approximately 11,000 acres. Notwithstanding the
1962 law, NIIP has not been fully constructed. The settlement
agreement and legislation amend Public Law 87-483 to allow the
Navajo Nation to use the NIIP water supply for other purposes;
establishes conditions that apply to any changes of use; and
caps overall diversions of water for NIIP. There are also
provisions specifically negotiated to protect existing water
users in the basin.
S. 1171 also provides the means to address an ongoing need
for drinking water on the Navajo Reservation through the
construction of the Navajo-Gallup Pipeline Project
(``Project''). Authorization and construction of the Project is
critical to the Navajo Nation, and integral to the Nation's
agreement to waive additional claims to water. According to an
analysis performed by the U.S. Bureau of Reclamation, over 40%
of Navajo households rely on water hauling to meet daily water
needs. Also, 40% of Navajo families have incomes below the
poverty level, compared with less than 10% nationwide. The lack
of infrastructure, economic development, and sustained poverty
are all closely connected. A reliable water supply is essential
for stimulating and sustaining economic development in the
region. The Project, by itself, will not eliminate water
hauling on the Reservation, but it will reduce it by providing
a reliable water supply of good quality much closer to many
Navajo communities. The Project will also hook into existing
distribution systems. Ultimately, the Project is expected to
serve in excess of 203,000 tribal members in 43 different
Navajo communities.
The Project will also serve other needs in New Mexico by
providing a significant water supply to the city of Gallup, New
Mexico, and, potentially, a smaller quantity to the Jicarilla
Apache Tribe. Currently, Gallup relies on groundwater pumping
to supply water to its residents. Due to falling water levels,
the City anticipates significant shortages sometime between
2010 and 2016. The construction of the Project is critical to
provide a long-term sustainable water supply to Gallup which
expects to have a population of 47,000 people by 2040.
On March 30, 2007, the Bureau of Reclamation released a
draft Environmental Impact Statement for the Navajo-Gallup
Project which analyzes several alternatives for the Project.
Another procedural hurdle was crossed in May 2006 when the
Bureau of Reclamation issued a draft hydrologic determination
finding that sufficient water exists from New Mexico's Upper
Colorado River Basin allocation for Project needs through at
least 2060. The Secretary of the Interior (Secretary) announced
the approval of the hydrologic determination on June 8, 2007.
Based on Reclamation's work, the Upper Colorado River
Commission (representing Colorado, Wyoming, Utah, and New
Mexico) approved a resolution in June 2006, supporting
Congressional action to: (1) approve the Settlement Agreement;
and (2) authorize the Navajo-Gallup Water Supply Project.
Legislative History
S. 1171 was introduced in the Senate on April 19, 2007 by
Senator Bingaman for himself and Senator Domenici, and referred
to the Committee on Energy and Natural Resources. The full
committee held a hearing on S. 1171 on June 27, 2007. (S. Hrg.
110-148.) At its business meeting on May 7, 2008, the Committee
on Energy and Natural Resources ordered S. 1171 favorably
reported as amended.
Committee Recommendation
The Committee on Energy and Natural Resources, in open
business session on May 7, 2008, by voice vote of a quorum
present, recommends that the Senate pass S. 1171, if amended as
described herein.
Committee Amendment
During the consideration of S. 1171, the Committee adopted
a substitute amendment to improve the bill. The amendment
incorporates a number of changes to several areas of the bill.
The bill was amended to incorporate new definitions and to
clarify that the new authorizations in S. 1171 would not result
in a reallocation of costs under existing laws. There is also a
new section that specifies the interest rate applicable to any
new repayment contracts entered into by the Bureau of
Reclamation.
Title I is amended in several places. These changes include
modifications that clarify how the bill would change existing
law, certain rights and responsibilities of the Navajo Nation
with respect to existing facilities; and how shortages would be
addressed for water made available from Navajo Reservoir.
Title II incorporates changes which have the effect of
increasing the amount of funding available from the Reclamation
Fund and the time frame for which such funding is available.
The amendment also establishes a new set of priorities that
will ensure that the Reclamation Fund can be used to implement
certain settlements in New Mexico, Montana, and Arizona
according to the time frame set out in Title II. The amendment
also modifies how funds are invested before they are disbursed
by the Secretary.
The amendments to Title III are numerous with a majority
being technical in nature, such as referring to the Project as
the Navajo-Gallup Water Supply Project in all places in the
bill. Other, more substantive changes include: (1) an increase
in cost-share by the State of New Mexico; (2) clarifications to
the authority of the Secretary to convey Project facilities to
the Project participants; (3) modifications which specify the
conditions under which the Project may deliver water to
communities in Arizona; (4) the inclusion of more specific
terms addressing project repayment and the responsibility for
paying operation, maintenance, and replacement (OM&R) costs;
and (5) new authorization of appropriations for the Secretary
to pay a limited amount of OM&R for the Project.
Finally, the amendment includes a number of technical
changes to Title IV of the bill. It also deletes a provision
related to a hydrographic survey and expressly incorporates the
waiver and release of certain legal claims upon implementation
of the settlement.
Section-by-Section Analysis
Section 1 provides the short title of the Act and a table
of contents.
Section 2 provides the definition of key terms used in the
Act.
Section 3(a) states that the Secretary's execution of the
Agreement shall not constitute a major federal action for
purposes of the National Environmental Policy Act.
Section 3(b) expressly requires the Secretary to comply
with all federal environmental laws in carrying out the
provisions of the Act. Specific reference is made to the
Endangered Species Act (ESA), and it is noted that the San Juan
Recovery Implementation Program (SJRIP) is a key factor in
ensuring that the Navajo-Gallup Project can result in new
depletions from the San Juan River system while maintaining
compliance with the ESA. It is expected that the SJRIP,
including the development of a programmatic biological opinion
by the U.S. Fish and Wildlife Service, will help ensure that
ESA compliance is maintained in the future notwithstanding the
development of future water uses within the Colorado River
apportionments made to the states of the Upper Colorado River
Basin.
Section 4(a) ensures that the Act will not result in a
reallocation or reassignment of existing costs under the
Colorado River Storage Project Act.
Section 4(b) states that no power revenues under the
Colorado River Storage Project Act will be used to pay for any
costs associated with the Navajo Indian Irrigation Project or
Navajo-Gallup Water Supply Project.
Section 5 specifies the interest rate to be used for any
repayment contract entered into under section 304 of the Act.
TITLE I--AMENDMENTS TO THE COLORADO RIVER
Section 101(a) amends the Colorado River Storage Project
Act by adding the Navajo-Gallup Water Supply Project as a
participating project.
Section 101(b) amends the Colorado River Storage Project
Act to authorize the Secretary to create a ``top water bank''
within the available capacity of Navajo Reservoir pursuant to
specific criteria and conditions set forth in the provision.
Section 102(a) amends section 2 of Public Law 87-483 by
striking the existing provision and replacing it with a new
section 2 that maintains the long-standing authorization for
the Navajo Indian Irrigation Project (NIIP) but includes
several new provisions. The revised section 2 specifically sets
forth the quantity of water available for the project;
authorizes additional uses of that water; authorizes the
transfer of that water outside NIIP and the Navajo reservation
under certain conditions, authorizes the use of NIIP facilities
to transport non-NIIP water if capacity is available; and
directs that the use of NIIP water for non-irrigation purposes
will not result in a reallocation of construction costs of
NIIP. The new authority to use the capacity of NIIP to convey
water for non-irrigation purposes does not authorize the
Secretary to construct any new features to NIIP that were not
already authorized under the Act of June 13, 1962. Also,
subsection (f) under the revised section 2 continues the
deferral of construction costs under the original Act,
notwithstanding the possible use of NIIP facilities to deliver
non-irrigation water.
Section 102(b) amends section 11 of P.L. 87-483 to add
several new subsections. The first (subsection 11(d)) specifies
how the Secretary is to determine and apportion shortages based
on the prospective runoff originating above Navajo Reservoir
and the available water in storage in Navajo Reservoir,
including a provision that makes clear that the Secretary is to
apply any shortage to the initial stage of the San Juan-Chama
project against the full annual diversion demand of 135,000
acre-feet. The second new subsection (subsection 11(e))
specifies the order in which the Secretary will curtail
releases and deliveries from Navajo Reservoir. The remaining
new provisions (subsection 11(f)-(i)) declare that the
Secretary shall apportion water on an annual volume basis;
recognize that water may be distributed pursuant to cooperative
agreements; and address diversions associated with a specific
New Mexico State Engineer permit.
Section 103 disclaims any effect on certain specified
Federal laws addressing water resources, unless expressly
stated.
TITLE II--RECLAMATION WATER SETTLEMENTS FUND
Section 201(a) establishes the ``Reclamation Water
Settlements Fund'' (Fund).
Section 201(b) directs that certain revenues be deposited
in the Fund and provides that those funds be available without
further appropriation pursuant to the section.
Section 201(c) specifies the conditions and criteria under
which the Secretary of the Interior can expend money from the
Reclamation Water Settlements Fund. First, the amounts
available are specified. The purposes are also defined, which
are to use the fund to implement a congressionally approved
settlement agreement to the extent that the settlement requires
the Bureau of Reclamation to provide financial assistance, or
to plan, design, and construct certain types of projects. Only
the settlement actions required to be carried out by the Bureau
of Reclamation and which fit the specified criteria, are to be
funded using the Fund. This subsection also specifies the
priorities for spending from the Fund and directs the Secretary
to reserve the specified quantities to ensure that a minimum of
such funding is available in the event that appropriations are
not sufficient to implement certain activities by the deadlines
set forth in the settlement legislation. The first priority is
funding to construct the Navajo-Gallup Water Supply Project.
The second priority is the funding needed to help implement two
other identified settlements in New Mexico. The third priority
is the expenditure of funds to help implement three identified
settlements in Montana. The fourth priority is the specified
funding needed to help implement an identified settlement in
Arizona. While other settlements may qualify for expenditures
from the fund, the identified settlements will be the
priorities subject to the requirement that Federal legislation
is enacted to authorize such settlements by December 31, 2014.
Section 201(d) directs the Secretary to invest the amounts
in the Fund and retains the benefits of that investment in the
Fund.
Section 201(e) addresses timing and adjustments issues
associated with transferring amounts to the Fund.
Section 201(f) specifies that the Fund will terminate on
September 30, 2028, and any balance will be returned to the
appropriate fund in the Treasury, which includes the
Reclamation Fund.
TITLE III--NAVAJO-GALLUP WATER SUPPLY PROJECT
Section 301 describes the purposes of Title III.
Section 302(a) authorizes the Secretary, acting through the
Commissioner of Reclamation to carry-out a range of activities
to construct and operate the Navajo-Gallup Water Supply
Project. Completion of the Project is one of the conditions
required to implement the settlement of the Navajo Nation's
water rights claims in the San Juan River basin.
Section 302(b) authorizes the Secretary to construct,
operate, and maintain a number of identified facilities
associated with the Project.
Section 302(c) authorizes the Secretary to acquire the
property interests necessary to construct, operate, and
maintain the Project, subject to the requirement that the
Project Participants provide any ownership interest they have
in such properties at no cost to the Secretary.
Section 302(d) specifies a number of conditions that must
be met before the Secretary is to commence construction of the
Project. One of the conditions is the completion of an
agreement with the State of New Mexico concerning its cost-
share associated with the Project. The Secretary will use any
such funds provided by New Mexico pursuant to the Contributed
Funds Act (43 U.S.C. 395) for the benefit of the Project.
Section 302(d) also makes clear that the Secretary is
authorized to construct the Project with appropriate
modifications if the Jicarilla Apache Nation elects to not
participate.
Section 302(e) directs the Secretary to reserve a specified
amount of power from the Colorado River Storage Project for use
by the Project.
Section 302(f) authorizes the Secretary to enter into
agreements with the Navajo Nation and the City of Gallup to
convey appropriate sections of the Project to those entities
under certain conditions. The conveyance is not to affect
application of the ESA, and the United States' liability for
actions associated with the Project is limited as set forth in
the subsection.
Section 302(g) provides that any conveyance under
subsection (f) will not affect the availability of power under
subsection (e).
Section 302(h) authorizes the use of Project facilities to
treat and convey non-Project water supplies under specified
conditions.
Section 303(a) specifies the authorized uses of Project
water, the place of use of such water supplies, and associated
conditions.
Section 303(b) authorizes the Project to divert specified
quantities of water from Navajo Reservoir and the San Juan
River subject to applicable state and Federal law. Subsection
(b) also specifies the Project capacity available to each of
the Project participants and authorizes deliveries in excess of
the designated capacity under specified conditions. Included in
the authorized capacity is a quantity of water available for
use by the Navajo Nation in Window Rock, Arizona.
Section 303(c) specifies the conditions that apply before
the Project can deliver water to communities in the State of
Arizona and how such water will be accounted for under the
Colorado River Compact and other applicable law.
Section 303(d) provides authority for the Navajo Nation to
forbear the delivery of Navajo Reservoir water for uses in New
Mexico so that an equivalent amount of water may be provided
for Project uses in Arizona. The authority provided by
subsection (d) is subject to several specified conditions
including a water rights settlement agreement between the
Navajo Nation and the State of Arizona, and a requirement that
any such uses be accounted for as part of the Colorado River
System apportionments to Arizona.
Section 303(e) provides a disclaimer concerning the
marketing of Project water or forbearance of the use of Project
water by the Navajo Nation.
Section 303(f) confirms the authority of the State of New
Mexico to use its apportionment of Colorado River water in the
lower Colorado River basin within New Mexico and the conditions
associated with such use. The Upper Colorado River Commission
approved this use of New Mexico's apportionment by a Resolution
adopted June 17, 2003, entitled ``Use and Accounting of Upper
Basin Water Supplied to the Lower Basin in New Mexico by the
Proposed Project.''
Section 303(g) authorizes the Secretary to pay the
operation and maintenance costs of the Project for a limited
amount of time as specified in the subsection.
Section 304(a) directs the Secretary to enter into a
Contract with the Navajo Nation for the delivery of Project
water as a condition of the water rights settlement. The
subsection notes that the Secretary has completed a hydrologic
determination which is a necessary prerequisite for executing
the Contract, and provides congressional ratification of the
Contract so long as it is consistent with the Act. The
subsection also specifies that certain identified construction
costs shall be non-reimbursable by the Navajo Nation. Except as
provided, the Nation shall be responsible for its share of the
operation and maintenance costs of the Project.
Section 304(b) authorizes the Secretary to enter into a
repayment contract with the City of Gallup, New Mexico, which
addresses repayment of allocable Project construction costs and
the payment of operation and maintenance costs. The
reimbursable portion of the City's construction cost repayment
obligation is addressed, and prepayment of the City's
construction cost obligation is also authorized subject to
certain conditions. The subsection also requires that the City
secure a water supply for its portion of the Project as a
precondition to the Secretary executing the repayment contract.
Section 304(c) authorizes the Secretary to enter into a
repayment contract with the Jicarilla Apache Nation, which
addresses repayment of allocable Project construction costs and
the payment of operation and maintenance costs. The
reimbursable portion of the Jicarilla Nation's construction
cost repayment obligation is addressed, and prepayment of the
Jicarilla Nation's construction cost obligation is also
authorized subject to certain conditions.
Section 304(d) directs the Secretary update the cost
estimate in the draft environmental impact statement (DEIS),
and to perform a final cost allocation when the Project is
substantially complete to establish the Project Participants'
final cost allocation.
Section 304(e) directs the Secretary to update the DEIS as
appropriate to determine the operation, maintenance, and
replacement cost obligations of the Project Participants.
Section 304(f) authorizes the Secretary to waive for a
period of not more than 10 years, the Navajo Nation's
obligation to pay for allocated operation, maintenance, and
replacement (OM&R) costs associated with completed sections of
the Project. Any waived costs shall be payable by the United
States and non-reimbursable from the Navajo Nation. This
provision will allow the Navajo Nation time to establish a rate
base sufficient to take over full OM&R costs at the appropriate
time set forth in the bill.
Section 304(g) directs the Secretary to form a Project
construction committee to address a number of issues affecting
the cost of the Project.
Section 305(a) authorizes the Navajo Nation to use the
Navajo Nation Municipal Pipeline (Pipeline) to convey water
other than the supplies authorized for use in association with
the Animas-La Plata Project.
Section 305(b) authorizes the Secretary to enter into
agreements to convey title to appropriate sections of the
Pipeline and associated property interests to the Navajo Nation
and City of Farmington, New Mexico. The conveyance is not to
affect application of the ESA, and the United States' liability
for actions associated with the Project is limited as set forth
in the subsection.
Section 306(a) directs the Navajo Nation to prepare a
groundwater development plan (Plan) with the Secretary for the
wells authorized to be constructed in section 306.
Section 306(b) authorizes the Secretary to construct or
rehabilitate wells and related pipelines to supply a certain
amount of groundwater to the Navajo Nation for municipal and
domestic uses, consistent with the Plan and as a condition of
the water rights settlement.
Section 306(c) authorizes the Secretary to develop
groundwater resources in the Little Colorado and Rio Grande
basins in accordance with the Plan.
Section 306(d) authorizes the Secretary to acquire
necessary property interests in association with groundwater
development, but does not authorize the condemnation of water
rights.
Section 306(e) requires the Secretary to execute the
Agreement prior to commencing any construction activity
associated with the wells.
Section 306(f) directs the Secretary to convey to the
Navajo Nation the title to any wells, related facilities, and
other appropriate property interests upon substantially
completing such facilities. The Secretary is authorized to pay
OM&R for the wells and related facilities until conveyed to the
Navajo Nation which should occur as soon as possible after
completion.
Section 306(g) authorizes the use of Project facilities to
treat and convey groundwater to the Navajo Nation under
specified conditions.
Section 306(h) requires that the diversion and use of
groundwater under section 306 be consistent with applicable
Federal or state law.
Section 307(a) directs the Secretary to rehabilitate two
existing irrigation projects serving the Navajo Nation.
Section 307(b) prohibits the Secretary from beginning any
construction activity associated with the rehabilitation before
the Agreement is executed.
Section 307(c) specifies that the Navajo Nation will be
responsible for OM&R of the rehabilitated facilities.
Section 308(a) requires the Secretary, in consultation with
identified entities, to study and make recommendations for
rehabilitating or otherwise improving the water use efficiency
of specified diversion and ditch facilities.
Section 308(b) authorizes the Secretary to provide grants
or enter into agreements to implement the projects identified
under subsection (a).
Section 308(c) identifies the required non-Federal cost-
share necessary to implement the rehabilitation projects and
the form of such cost-share.
Section 309(a) authorizes the appropriations necessary to
plan, design, and construct the Navajo-Gallup Water Supply
Project, including an appropriate inflation adjustment. The
Project may also be constructed using the funds made available
in Title II if appropriations are not sufficient to construct
the Project by the identified deadline. Subsection (a) also
authorizes appropriations for operating and maintaining the
Project for a specified amount of time.
Section 309(b) authorizes appropriations for constructing,
rehabilitating, and for a 3-year period, operating and
maintaining the wells and associated facilities identified in
section 306(b)-(c). The amounts authorized for the wells in the
San Juan River basin are to be appropriately adjusted for
inflation.
Section 309(c) authorizes appropriations for implementing
the rehabilitation projects identified in section 307,
including an appropriate adjustment for inflation.
Section 309(d) authorizes appropriations for implementing
section 308.
Section 309(e) specifies the maximum percentage of
appropriations that may be used for the protection of cultural
resources under existing law, and that such appropriations are
nonreimbursable.
Section 309(f) specifies the maximum percentage of
appropriations that may be used for the protection of fish and
wildlife, and that such appropriations are nonreimbursable.
TITLE IV--NAVAJO NATION WATER RIGHTS
Section 401(a) approves the water rights settlement
agreement resolving the Navajo Nation's water rights claims in
the San Juan River Basin in New Mexico and directs the
Secretary to enter into the Agreement, including any amendments
needed to make the Agreement consistent with the Act.
Section 401(b) identifies the water supplies to be made
available to the Navajo Nation under the Contract and declares
certain rights and responsibilities associated with the use of
that water.
Section 401(c) authorizes the Navajo Nation to enter into
subcontracts to lease water supplies available under the
Contract to third parties within New Mexico under certain
specified conditions, including approval by the Secretary and
compliance with the Agreement and the Partial Final Decree.
Section 401(d) authorizes the Navajo Nation to lease or
otherwise transfer other water supplies available under the
Agreement to another party within New Mexico under certain
specified conditions, including compliance with the Agreement
and the Partial Final Decree.
Section 401(e) identifies the deadlines for completing a
number of actions necessary to implement the settlement
agreement with the Navajo Nation. It also authorizes extension
of the deadlines and defines the rights of the Navajo Nation to
terminate the Agreement if the deadlines are not substantially
met. Subsection (e) also expressly declares that certain events
or conditions are not cause to nullify or terminate the
Agreement.
Section 401(f) limits the effect of the Agreement,
Contract, or Section on the rights of other Indian tribe or
community with one specified exception.
Section 402(a) establishes a ``Navajo Nation Water
Resources Development Trust Fund'' consisting of certain
identified funds.
Section 402(b) authorizes specified uses of the Trust Fund
by the Navajo Nation.
Section 402(c) directs the Secretary to manage and
distribute money from the Fund in accordance with the American
Indian Trust Fund Management Reform Act.
Section 402(d) directs the Secretary to invest amounts in
the Trust Fund in a specified manner.
Section 402(e) identifies a number of conditions for
expenditures and withdrawals from the Trust Fund, including a
Tribal management plan and the completion of certain actions
associated with implementing the Agreement.
Section 402(f) authorizes appropriations for the Trust
Fund.
Section 403(a) requires the Navajo Nation and United States
to execute specified waivers and releases associated with the
Navajo Nation's water rights claims in the San Juan River
basin.
Section 403(b) requires the Navajo Nation to execute a
waiver and release of certain claims against the United States.
Section 403(c) identifies certain rights and claims that
the Navajo Nation and the United States on its behalf retain in
association with the Agreement.
Section 403(d) declares the conditions necessary for the
waivers and releases to become effective and a deadline for
satisfying those conditions.
Section 404 declares that the water rights adjudicated to
the Navajo Nation shall be held in trust by the United States.
Cost and Budgetary Considerations
The Congressional Budget Office estimate of the costs of
this measure has been requested but was not received at the
time the report was filed. When the Congressional Budget Office
completes its cost estimate, it will be posted on the internet
at www.cbo.gov.
Regulatory Impact Evaluation
In compliance with paragraph 11(b) of Rule XXVI of the
Standing Rules of the Senate, the Committee makes the following
evaluation of the regulatory impact which would be incurred in
carrying out S. 1171. The bill is not a regulatory measure in
the sense of imposing Government-established standards or
significant economic responsibilities on private individuals
and businesses.
No personal information would be collected in administering
the program. Therefore, there would be no impact on personal
privacy.
Little, if any, additional paperwork would result from the
enactment of S. 1171, as ordered reported.
Congressionally Directed Spending
In accordance with paragraph 4(b) of rule XLIV of the
Standing Rules of the Senate, the Committee provides the
following identification of congressionally directed spending
items contained in the bill, as reported:
------------------------------------------------------------------------
Section Provision Member
------------------------------------------------------------------------
309......................... Authorization of Senators Bingaman
appropriations. and Domenici
402(f)...................... Authorization of Senators Bingaman
appropriations. and Domenici
------------------------------------------------------------------------
Executive Communications
The testimony provided by the Department of the Interior at
the committee hearing on June 27, 2007 on S. 1171 follows:
Statement of Robert Johnson, Commissioner, Bureau of Reclamation, and
Carl Artman, Assistant Secretary for Indian Affairs, Department of the
Interior
Chairman Bingaman and Ranking Member Domenici, we would
like to thank you for the opportunity to appear today to
present the Administration's views on S. 1171, the Northwestern
New Mexico Rural Water Projects Act. The Department of the
Interior's support for negotiated settlements as an approach to
resolving Indian water rights remains strong. The
Administration, however, has concerns that S. 1171 would
increase mandatory spending, delay the full cost of the
legislation beyond the 10 year Congressional scorekeeping
window, not provide for adequate cost sharing by non-Federal
interests, and likely include costs that exceed the Federal
government's underlying liability. The Administration did not
participate in the drafting of the water rights settlement
embodied in S. 1171, and does not support a water settlement
under these circumstances. For these reasons, the
Administration opposes the cost and cannot support the
legislation as written. We would like to work with Congress and
all parties concerned in developing a settlement that the
Administration can support.
S. 1171 would amend Federal statutes that relate to the
Bureau of Reclamation and the use of water in the Colorado
River basin. Major provisions include: (1) Authorization for
the Bureau of Reclamation to construct and operate a pipeline
(formally titled the ``Northwestern New Mexico Rural Water
Supply Project'', but generally known as the ``Navajo-Gallup
Pipeline Project'') to bring water from the San Juan River to
the eastern portion of the Navajo Reservation, the Jicarilla
Apache Reservation, and the City of Gallup, New Mexico; (2)
creation of a Reclamation Water Settlements Fund in the
Treasury that could be used to fund activities under this bill
and future Indian water rights settlements, to be funded by the
diversion of revenues from the existing Reclamation Fund; (3)
authorization for the Secretary of the Interior to reserve up
to 26 megawatts of power from existing reservations of Colorado
River Storage Project power for Bureau of Reclamation projects
for use by the Northwestern New Mexico Rural Water Supply
Project; and (4) authorization for the Secretary to
rehabilitate existing irrigation projects, develop groundwater
wells, and establish other funds for the benefit of the Navajo
Nation. The bill also includes provisions that would resolve
the Navajo Nation's Federal Indian reserved water rights claims
in the San Juan River in New Mexico, although the United States
was not party to the final negotiations on this issue.
the role of the criteria and procedures
The Administration has been actively engaged in the New
Mexico water settlements. You will recall, Mr. Chairman, that
Secretary Kempthorne committed during his confirmation to
bringing his energy and concern to the pending water
settlements in New Mexico. Consistent with this pledge, we have
made it a high priority to better understand the complex issues
that must be resolved in each of the proposed New Mexico
settlements. Our water rights team has made several trips to
New Mexico to visit with the Pueblos, Tribes, the State, local
communities, water users, and other constituencies to these
proposed settlements. A few months ago, at the Secretary's
request, key officials from the Departments of Justice and the
Interior and the Office of Management and Budget traveled to
Navajo country to observe first-hand the difficult issues
related to water delivery on the Reservation.
Mr. Chairman and members, we are keenly aware of the needs
in this area of the United States. On the Navajo Reservation,
some people routinely haul water for 20-30 miles several times
a week to provide for their basic household needs. Families
must travel extended distances to do laundry because washing
machines require water hookups which they do not have. There is
no question that the Administration officials who traveled to
the Reservation came away with powerful and indelible images as
well as a better understanding of the needs of Reservation
inhabitants seeking access to basic services that are taken for
granted by all but a few Americans.
Nonetheless, despite our understanding of the human needs
on the Navajo Reservation, we firmly believe that the
resolution of substantive and procedural problems raised by
this bill will require the active involvement of all parties to
the proposed settlement. It is important to have an open and
full discussion on all aspects of the settlement, including the
specific goals of the Navajo Nation and the State of New Mexico
for the settlement of these claims and whether these goals can
be met by alternative and potentially less expensive means.
This settlement was developed largely without Federal
involvement, and, consistent with Secretary Kempthorne's
commitment to address these issues, we would welcome the
opportunity to continue to engage with the Committee and
proponents of this settlement to see if we can identify areas
of common ground sufficient to move forward with the full
support of the Administration.
One of the first steps in this process, Mr. Chairman, is
for us to acknowledge the three New Mexico settlement proposals
that are now being advocated to Congress. While the Navajo
settlement in the San Juan River is the subject of today's
hearing, there are other settlements proposed in New Mexico, as
well as in other western states, that require active Federal
participation in negotiations. If enacted, the cost of S. 1171,
alone, is estimated to exceed 1 billion dollars. If the other
two proposals from New Mexico, Aamodt (involving the Pueblos of
Nambe, Pojoaque, San Ildefonso, and Tesuque) and Abeyta
(involving the Pueblo of Taos), about which the Administration
also has raised serious concerns, were to be enacted as
currently envisioned by their proponents, total expenditures
for Indian water rights settlements in New Mexico alone are
likely to exceed $1.5 billion.
The Administration believes that the policy guidance found
in the Criteria and Procedures for the Participation of the
Federal Government in Negotiations for the Settlement of Indian
Water Rights Claims (``Criteria'') (55 Fed. Reg. 9223 (1990))
provides a flexible framework in which we can evaluate the
merits of this bill. The Criteria provide guidance on the
appropriate level of Federal contribution to the settlements,
incorporating consideration of calculable legal exposure plus
costs related to Federal trust or programmatic
responsibilities. In addition, the Criteria call for
settlements to contain non-Federal cost-share proportionate to
the benefits received by the non-Federal parties, and specify
that the total cost of a settlement to all parties should not
exceed the value of the existing claims as calculated by the
Federal Government. As we have testified previously, the
Criteria is a tool that allows the Administration to evaluate
each settlement in its unique context while also establishing a
process that provides guidance upon which proponents of
settlements can rely.
provisions of particular concern in s. 1171
We would like in the remainder of this statement to provide
a synopsis of substantive concerns regarding S. 1171. We will
start with the high cost of this settlement. The Administration
has concerns about the costs associated with this legislation,
and currently opposes the nearly $1 billion financial
commitment embodied in this bill. We are also concerned about
the large number of authorizations that the bill contains,
including the indefinite amount authorized for construction of
the Navajo-Gallup Pipeline. We have not yet been able to fully
analyze the costs of this legislation. In 2005, the Bureau of
Reclamation estimated that the price of the Navajo-Gallup
pipeline would be approximately $716 million. Reclamation is in
the process of updating this appraisal-level price estimate to
better reflect current construction conditions, and expects an
upward adjustment to nearly $1 billion for this feature alone.
In addition, S. 1171 would authorize Federal expenditures of
$30 million for groundwater wells, $23 million for
rehabilitation of Fruitland-Cambridge and Hogback-Cudei
irrigation projects, $11 million for other irrigation projects,
$5 million for hydrographic surveys, and $50 million to be
placed in a Navajo Nation Water Resources Development Trust
Fund to be used by the Navajo Nation for water facility
construction and maintenance or implementation of water
conservation measures.
The Administration has serious concerns regarding the
proposal contained in Title II of this bill to establish a
``Reclamation Water Settlements Fund'' within the United States
Treasury. Title II provides that revenues of up to $100 million
a year for fiscal years 2018 through 2028, which is a time
period outside the Congressional scorekeeping window, be
diverted from the Reclamation Fund into the Water Settlements
Fund. S. 1171 provides that moneys in the Water Settlements
Fund would be available without further appropriation to fund
water supply infrastructure authorized under this bill if there
turns out to be insufficient funding available through the
regular appropriations process to meet the funding and
construction deadlines established in this bill. The second
priority for the Water Settlements Fund would be to implement
other Indian water rights settlements approved by Congress,
including water supply infrastructure, rehabilitation of water
delivery systems, fish and wildlife restoration or
environmental improvement. The Reclamation Water Settlements
Fund would terminate in 2030 and any remaining balance would be
transferred to the General Fund of the Treasury.
We believe the sponsors of this legislation are looking for
stable mechanisms to ensure the availability of funding for
Indian water rights settlements around the West. We are
concerned, however, that this proposal would allow direct
spending not subject to further appropriations for future
settlements, preventing future Presidents and Congresses from
setting their own priorities with regard to budgeting and
appropriating Federal tax dollars. At the present time, use of
monies from the Reclamation Fund are discretionary and subject
to annual appropriations by Congress.
While S. 1171 does require some cost-sharing in the form of
a requirement for partial reimbursement of construction costs
from the City of Gallup and the Jicarilla Apache Nation, it is
limited. The City of Gallup and the Jicarilla Apache Nation
would be required to repay the portion of the construction
costs for the pipeline and associated facilities that the
Secretary would allocate to them as their responsibility, but
only to the extent of their ability to pay, or alternatively, a
minimum of 25% of such allocated construction costs, within 50
years of project completion.
Project proponents assert that the Navajo-Gallup Pipeline
Project would qualify as a rural water project under the rural
water program being established by the Bureau of Reclamation
pursuant to the Rural Water Supply Act of 2006 (P.L. 109-451),
legislation which was passed in December of 2006. However, the
proposed pipelines envisioned by this bill have not received
the level of scrutiny that this newly established program will
provide. Under the rural water program, each project must be
investigated prior to authorization, and the Secretary must
consider whether the non-Federal project entity has the
capability to pay 100 percent of the costs associated with the
operations, maintenance, and replacement of the facilities
constructed or developed as part of the rural water supply
project. The Secretary must also recommend an appropriate non-
Federal cost-share for the proposed rural water project based
on the capability-to-pay of project sponsors, or at least 25%
of total construction costs. The program allows the Secretary
to consider deferring construction costs allocated to Indian
tribes. Under this new program, the Secretary is to forward to
Congress recommendations regarding whether or not the proposed
rural water project should be authorized for construction based
upon appraisal level and feasibility studies and the
eligibility and prioritization criteria developed pursuant to
the Rural Water Supply Act. The rural water program is intended
to target communities of 50,000 inhabitants or fewer. The
Secretary may require larger communities to pay a higher
portion of project costs. Since Reclamation's rural water
program is still under development, we have not evaluated the
activities proposed in S. 1171 under the rural water project
eligibility and prioritization criteria; these criteria are
currently being developed by Reclamation. Upon development, we
will actively evaluate whether this project would meet such
criteria and could be recommended to Congress for authorization
as a rural water project.
We have identified a number of other concerns regarding
this bill. These include potential interpretation conflicts
concerning the Navajo Indian Irrigation Project; the timing of
transfers of title to the Nation; the authorization of Federal
grants to support the repair and rehabilitation of certain
irrigation projects, and concern that this bill might give the
State of New Mexico an inappropriate role in the operation of
Federal facilities that are currently operated by the United
States under the Colorado River Compact and Reclamation law.
Also, the Department of Justice has concerns about the waivers
and releases referred to in section 403. First, they are still
reviewing these waivers and releases for adequacy. Second,
waivers and releases should be stated in full in the
legislation because they are critical to the finality of the
agreements.
We also note that the bill should require the Secretary of
the Interior, rather than the Secretary of the Treasury, to
invest amounts in the proposed Reclamation Water Settlements
Fund, in order to make use of the investment expertise of
Interior's Office of the Special Trustee for American Indians.
comparing this bill with other water rights settlements
Much has been said about the position taken by the
Administration on water rights and other settlements over the
past few years, suggesting that not supporting S. 1171 as
written would be inconsistent with the positions we have taken
on previously introduced water settlement bills. We want to
squarely address these issues.
First, we emphasize that each proposed settlement is
unique. The Administration evaluates each proposed settlement
individually. Just as we did with each of the water settlements
that have been proposed in recent years, notably the Arizona
Water Rights Settlement Act (P.L. 108-451), the Snake River
Water Rights Settlement Act (P.L. 108-447), and the San Joaquin
River settlement that is proposed in legislation pending in
this Congress (S. 27 and H.R. 24), the Administration must
evaluate this proposed settlement in its unique context to
determine to what extent it is consistent with our programmatic
objectives and our responsibility to American taxpayers as well
as our responsibility to protect the interests of the Navajo
Nation. All of these previous settlements encompassed multiple
objectives, providing comprehensive solutions to multi-faceted
problems.
In the case of the Arizona Water Rights Settlement Act, the
settlement resolved a dispute over the financial repayment
obligation of Arizona water users for the Central Arizona
Project (CAP), with significant amounts of money at stake.
Federal representatives recognized that the CAP operational
flexibility necessary to resolve the dispute could only be
granted if sufficient legal and legislative protection was
achieved to assure tribal access to, and use of, CAP project
water. Enactment of the Indian water rights settlements in that
Act was key to resolving larger legal issues involving CAP
repayments by Arizona water users. Achieving final settlement
of these larger issues made the legislation generally
acceptable to the Administration, although our testimony did
express concern about the cost of the settlement.
The Snake River Settlement in Idaho entailed several
complex Endangered Species Act components that allowed further
water resources development to occur for the Nez Perce Tribe
and other water users in a manner that also fulfilled the
Department's obligation to protect and recover listed species.
The other settlement that has been compared to this bill,
the San Joaquin Restoration Program, is in fact not connected
to any Indian water rights settlement. The San Joaquin
Restoration Program implements a settlement of a lawsuit that
had been ongoing for over eighteen years, where a Federal judge
had concluded that Reclamation's operations violated a
provision of California law. The San Joaquin restoration
program also involves cost shares, authorizing up to $250
million of new Federal appropriations but only as a match for
non-Federal funding of the restoration costs. This means that
the State of California and Friant water users are funding a
significant portion of the restoration costs. Approximately
$200 million of State bond funds for projects that will
directly contribute to restoration efforts have already been
approved by California voters.
We wish to reiterate however that the Administration is
committed to ensuring consistency with the Criteria and
Procedures. The settlement of the Navajo claims to the San Juan
River proposed in this bill has a high Federal cost without
appropriate safeguards that carrying out the authorized
activities would accomplish the goals and objectives of the
proposed settlement. These kinds of analyses should be
completed prior to the passage of such a large settlement
proposal. In light of the goal of finality, it is especially
troubling that this bill does not address the distribution
systems that must be constructed before any water will actually
reach the homes of those who need it.
conclusion
The Administration and Secretary Kempthorne remain
committed to supporting the Indian water right settlement
process and ensuring that such settlements fulfill the Federal
Government's responsibilities to Indian Tribes while also
protecting the interests of the taxpaying public. The Bureau of
Reclamation, the Secretary's Indian Water Rights Office, and
many others in the Department are vigorously working to develop
the information and documentation necessary to support a full
and open discussion of this settlement. This includes already
having developed a draft environmental impact statement on the
proposed pipeline and completing the hydrologic determination
on water availability in New Mexico. We expect to have an
updated appraisal-level estimate of the costs of constructing
the pipeline completed in the near future.
The Administration hopes that the entities proposing this
legislation, including the Navajo Nation, the City of Gallup,
the State of New Mexico, and the Jicarilla Apache Nation, will
agree to work together with us towards the common goal: a
settlement that will ensure that the Navajo obtain a secure,
economically beneficial water supply consistent with our
obligations to the taxpaying public. A clean, reliable water
supply is of utmost importance to the members of the Navajo
Nation, as it is to all Americans, and the United States is
committed to working towards achieving it. While much work
remains ahead, we are hopeful that this hearing will assist in
advancing a process that results in a successful outcome.
Mr. Chairman, this completes our statement. We would be
happy to answer any questions the Committee may have.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill S. 1171 as ordered reported, are shown as follows
(existing law proposed to be omitted is enclosed in black
brackets, new matter is printed in italic, existing law in
which no change is proposed is shown in roman):
Public Law 84-485, Chapter 203 (70 Stat. 105)
AN ACT To authorize the Secretary of the Interior to construct,
operate, and maintain the Colorado River storage project and
participating projects, and for other purposes
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That, in
order to initiate the comprehensive development of the water
resources of the Upper Colorado River Basin, for the purposes,
among others, of regulating the flow of the Colorado River,
storing water for beneficial consumptive use, making it
possible for the States of the Upper Basin to utilize,
consistently with the provisions of the Colorado River Compact,
the apportionments made to and among them in the Colorado River
Compact and the Upper Colorado River Basin Compact,
respectively, providing for the reclamation of arid and
semiarid land, for the control of floods, and for the
generation of hydroelectric power, as an incident of the
foregoing purposes, the Secretary of the Interior is hereby
authorized (1) to construct, operate, and maintain the
following initial units of the Colorado River storage project,
consisting of dams, reservoirs, powerplants, transmission
facilities and appurtenant works; Curecanti, Flaming Gorge,
Navajo (dam and reservoir only), and Glen Canyon: Provided,
That the Curecanti Dam shall be constructed to a height which
will impound not less than nine hundred and forty thousand
acre-feet of water or will create a reservoir of such greater
capacity as can be obtained by a high waterline located at
seven thousand five hundred and twenty feet above mean sea
level, and that construction thereof shall not be undertaken
until the Secretary has, on the basis of further engineering
and economic investigations, reexamined the economic
justification of such unit and, accompanied by appropriate
documentation in the form of a supplemental report, has
certified to the Congress and to the President that, in his
judgment, the benefits of such unit will exceed its costs; and
(2) to construct, operate, and maintain the following
additional reclamation projects (including power-generating and
transmission facilities related thereto), hereinafter referred
to as participating projects: Central Utah (initial phase and
the Uintah unit), San Juan-Chama (initial stage), Emery County,
Florida, Hammond, La Barge, Lyman, Navajo Indian, Paonia
(including the Minnesota unit, a dam and a reservoir on Muddy
Creek just above its confluence with the North Fork of the
Gunnison River, and other necessary works), Animas La Plata,
Dolores, Dallas Creek, West Divide, San Miguel, Seedskadee,
Savery-Pot Hook, Bostwick Park, Fruitland Mesa, the Navajo-
Gallup Water Supply Project, Silt and Smith Fork: Provided
further, That as part of the Glen Canyon Unit the Secretary of
the Interior shall take adequate protective measures to
preclude impairment of the Rainbow Bridge National Monument.
Sec. 2. In carrying out further investigations of projects
under the Federal reclamation laws in the Upper Colorado River
Basin, the Secretary shall give priority to completion of
planning reports on the Gooseberry, Eagle Divide, Bluestone,
Battlement Mesa, Grand Mesa, Yellow Jacket, Basalt Middle Park
(including the Troublesome, Rabbit Ear, and Azure units), Upper
Gunnison (including the East River, Ohio Creek, and Tomichi
Creek units), Lower Yampa (including the Juniper and Great
Northern units), Upper Yampa (including the Hayden Mesa,
Wessels, and Toponas units), and Sublette (including a
diversion of water from the Green River to the North Platte
River Basin in Wyoming), Ute Indian unit of the Central Utah
Project, San Juan County (Utah), Price River, Grand County
(Utah), Gray Canyon, and Juniper (Utah) participating projects:
Provided, That the planning report for the Ute Indian unit of
the Central Utah participating project shall be completed on or
before December 31, 1974, to enable the United States of
America to meet the commitments heretofore made to the Ute
Indian Tribe of the Uintah and Ouray Indian Reservation under
the agreement dated September 20, 1965 (Contract Numbered 14-
06-W-194). Said reports shall be completed as expeditiously as
funds are made available therefor and shall be submitted
promptly to the affected States, which in the case of the San
Juan-Chama project shall include the State of Texas, and
thereafter to the President and the Congress: Provided, That
with reference to the plans and specifications for the San
Juan-Chama project, the storage for control and regulation of
water imported from the San Juan River shall (1) be limited to
a single offstream dam and reservoir on a tributary of the
Chama River, (2) be used solely for control and regulation and
no power facilities shall be established, installed or operated
thereat, and (3) be operated at all times by the Bureau of
Reclamation of the Department of the Interior in strict
compliance with the Rio Grande Compact as administered by the
Rio Grande Compact Commission. The preparation of detailed
designs and specification for the works proposed to be
constructed in connection with projects shall be carried as far
forward as the investigations thereof indicate is reasonable in
the circumstances.
The Secretary, concurrently with the investigations
directed by the preceding paragraph, shall also give priority
to completion of a planning report on the Juniper project.
* * * * * * *
Sec. 15. The Secretary of the Interior is directed to
continue studies and to make a report to the Congress and to
the States of the Colorado River Basin on the quality of water
of the Colorado River.
Sec. 16. (a) The Secretary of the Interior may create and
operate within the available capacity of Navajo Reservoir a top
water bank.
(b) Water made available for the top water bank in
accordance with subsections (c) and (d) shall not be subject to
section 11 of Public Law 87-483 (76 Stat. 99).
(c) The top water bank authorized under subsection (a)
shall be operated in a manner that--
(1) is consistent with applicable law, except that,
notwithstanding any other provision of law, water for
purposes other than irrigation may be stored in the
Navajo Reservoir pursuant to the rules governing the
top water bank established under this section; and
(2) does not impair the ability of the Secretary of
the Interior to deliver water under contracts entered
into under--
(A) Public Law 87-483 (76 Stat. 96); and
(B) New Mexico State Engineer File Nos. 2847,
2848, 2849, and 2917.
(d)(1) The Secretary of the Interior, in cooperation with
the State of New Mexico (acting through the Interstate Stream
Commission), shall develop any terms and procedures for the
storage, accounting, and release of water in the top water bank
that are necessary to comply with subsection (c).
(2) The terms and procedures developed under paragraph (1)
shall include provisions requiring that--
(A) the storage of banked water shall be subject to
approval under State law by the New Mexico State
Engineer to ensure that impairment of any existing
water right does not occur, including storage of water
under New Mexico State Engineer File No. 2849;
(B) water in the top water bank be subject to
evaporation and other losses during storage;
(C) water in the top water bank be released for
delivery to the owner or assigns of the banked water on
request of the owner, subject to reasonable scheduling
requirements for making the release; and
(D) water in the top water bank be the first water
spilled or released for flood control purposes in
anticipation of a spill, on the condition that top
water bank water shall not be released or included for
purposes of calculating whether a release should occur
for purposes of satisfying the flow recommendations of
the San Juan River Basin Recovery Implementation
Program.
(e) The Secretary of the Interior may charge fees to water
users that use the top water bank in amounts sufficient to
cover the costs incurred by the United States in administering
the water bank.
Sec. [16] 17. As used in the Act--
The terms ``Colorado River Basin'', ``Colorado River
Compact'', ``Colorado River System'', ``Lee Ferry'',
``States of the Upper Division'', ``Upper Basin'', and
``domestic use'' shall have the meaning ascribed to
them in article II of the Upper Colorado River Basin
Compact;
The term ``States of the Upper Colorado River Basin''
shall mean the States of Arizona, Colorado, New Mexico,
Utah, and Wyoming;
The term ``Upper Colorado River Basin'' shall have
the same meaning as the term ``Upper Basin'';
The term ``Upper Colorado River Basin Compact'' shall
mean that certain compact executed on October 11, 1948
by commissioners representing the States of Arizona,
Colorado, New Mexico, Utah, and Wyoming, and consented
to by the Congress of the United States of America by
Act of April 6, 1949 (63 Stat. 31);
The term ``Rio Grande Compact'' shall mean that
certain compact executed on March 18, 1938, by
commissioners representing the States of Colorado, New
Mexico, and Texas and consented to by the Congress of
the United States of America by Act of May 31, 1939 (53
Stat. 785);
The term ``Treaty with the United Mexican States''
shall mean that certain treaty between the United
States of America and the United Mexican States, signed
at Washington, District of Columbia, February 3, 1944,
relating to the utilization of the waters of the
Colorado River and other rivers, as amended and
supplemented by the protocol dated November 14, 1944,
and the understandings recited in the Senate resolution
of April 18, 1945, advising and consenting to
ratification thereof.
* * * * * * *
Public Law 87-483 (76 Stat. 96)
AN ACT To authorize the Secretary of the Interior to construct,
operate, and maintain the Navajo Indian irrigation project and the
initial stage of the San Juan-Chama project as participating projects
of the Colorado River storage project, and for other purposes
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That, for
the purposes of furnishing water for the irrigation of
irrigable and arable lands and for municipal, domestic, and
industrial uses, providing recreation and fish and wildlife
benefits, and controlling silt, and for other beneficial
purposes, the Congress approves as participating projects of
the Colorado River storage project (Act of April 11, 1956, 70
Stat. 105, as amended, 43 U.S.C. 620-620o) the Navajo Indian
irrigation project, New Mexico, and the initial stage of the
San Juan Chama project, Colorado-New Mexico. The Navajo Indian
irrigation project and the initial stage of the San Juan-Chama
project herein approved are substantially those described in
the proposed coordinated report of the Acting Commissioner of
Reclamation and the Commissioner of Indian Affairs, approved
and adopted by the Secretary of the Interior on October 16,
1957, as conditioned, modified, and limited herein.
NAVAJO INDIAN IRRIGATION PROJECT
* * * * * * *
[Sec. 2. Pursuant to the provisions of the Act of April 11,
1956, as amended, the Secretary of the Interior is authorized
to construct, operate, and maintain the Navajo Indian
irrigation project for the principal purpose of furnishing
irrigation water to approximately one hundred and ten thousand
six hundred and thirty acres of land, said project to have an
average annual diversion of five hundred and eight thousand
acre-feet of water and the repayment of the costs of
construction thereof to be in accordance with the provisions of
said Act of April 11, 1956, as amended, including, but not
limited to, section 4(d) thereof.]
Sec. 2. (a) In accordance with the Act of April 11, 1956
(commonly known as the `Colorado River Storage Project Act')
(43 U.S.C. 620 et seq.), the Secretary of the Interior is
authorized to construct, operate, and maintain the Navajo
Indian Irrigation Project to provide irrigation water to a
service area of not more than 110,630 acres of land.
(b)(1) Subject to paragraph (2), the average annual
diversion by the Navajo Indian Irrigation Project from the
Navajo Reservoir over any consecutive 10-year period shall be
the lesser of--
(A) 508,000 acre-feet per year; or
(B) the quantity of water necessary to supply an
average depletion of 270,000 acre-feet per year.
(2) The quantity of water diverted for any 1 year shall not
exceed the average annual diversion determined under paragraph
(1) by more than 15 percent.
(c) In addition to being used for irrigation, the water
diverted by the Navajo Indian Irrigation Project under
subsection (b) may be used within the area served by Navajo
Indian Irrigation Project facilities for the following
purposes:
(1) Aquaculture purposes, including the rearing of
fish in support of the San Juan River Basin Recovery
Implementation Program authorized by Public Law 106--
392 (114 Stat. 1602).
(2) Domestic, industrial, or commercial purposes
relating to agricultural production and processing.
(3)(A) The generation of hydroelectric power as an
incident to the diversion of water by the Navajo Indian
Irrigation Project for authorized purposes.
(B) Notwithstanding any other provision of law--
(i) any hydroelectric power generated under
this paragraph shall be used or marketed by the
Navajo Nation;
(ii) the Navajo Nation shall retain any
revenues from the sale of the hydroelectric
power; and
(iii) the United States shall have no trust
obligation to monitor, administer, or account
for the revenues received by the Navajo Nation,
or the expenditure of the revenues.
(4) The implementation of the alternate water source
provisions described in subparagraph 9.2 of the
agreement executed under section 401(a)(2) of the
Northwestern New Mexico Rural Water Projects Act.
(d) The Navajo Indian Irrigation Project water diverted
under subsection (b) may be transferred to areas located within
or outside the area served by Navajo Indian Irrigation Project
facilities, and within or outside the boundaries of the Navajo
Nation, for any beneficial use in accordance with--
(1) the agreement executed under section 401(a)(2) of
the Northwestern New Mexico Rural Water Projects Act;
(2) the contract executed under section 304(a)(2)(B)
of that Act; and
(3) any other applicable law.
(e) The Secretary may use the capacity of the Navajo Indian
Irrigation Project works to convey water supplies for--
(1) the Navajo-Gallup Water Supply Project under
section 302 of the Northwestern New Mexico Rural Water
Projects Act; or
(2) other nonirrigation purposes authorized under
subsection (c) or (d).
(f)(1) Repayment of the costs of construction of the
project (as authorized in subsection (a)) shall be in
accordance with the Act of April 11, 1956 (commonly known as
the ``Colorado River Storage Project Act'') (43 U.S.C. 620 et
seq.), including section 4(d) of that Act.
(2) The Secretary shall not reallocate, or require
repayment of, construction costs of the Navajo Indian
Irrigation Project because of the conveyance of water supplies
for nonirrigation purposes under subsection (e).
* * * * * * *
GENERAL
Sec. 11. (a) No person shall have or be entitled to have
the use for any purpose, including uses under the Navajo Indian
irrigation project and the San Juan-Chama project authorized by
sections 2 and 8 of this Act, of water stored in Navajo
Reservoir or of any other waters of the San Juan River and its
tributaries originating above Navajo Reservoir to the use of
which the United States is entitled under these projects except
under contract satisfactory to the Secretary and conforming to
the provisions of this Act. Such contracts, which, in the case
of water for Indian uses, shall be executed with the Navajo
Tribe, shall make provision, in any year in which the Secretary
anticipates a shortage, taking into account both prospective
runoff originating above Navajo Reservoir and the available
water in storage in Navajo Reservoir, for a sharing of the
available water in the following manner: The prospective runoff
shall be apportioned between the contractors diverting above
and those diverting at or below Navajo Reservoir in the
proportion that the total normal diversion requirement of each
group bears to the total of all normal diversion requirements.
In the case of contractors diverting above Navajo Reservoir,
each such contract shall provide for a sharing of the runoff
apportioned to said group in the same proportion as the normal
diversion requirement under said contract bear to the total
normal diversion requirements of all such contracts that have
been made hereunder: Provided, That for any year in which the
foregoing sharing procedure either would apportion to any
contractor diverting above Navajo Reservoir an amount in excess
of the runoff anticipated to be physically available at the
point of his diversion, or would result in no water being
available to one or more such contractors, the runoff
apportioned to said group shall be reapportioned, as near as
may be among the contractors diverting above Navajo Reservoir
in the proportion that the normal diversion requirements of
each bears to the total normal diversion requirements of the
group. In the case of contractors diverting from or below
Navajo Reservoir, each such contract shall provide for a
sharing of the remaining runoff together with the available
storage in the same proportion as then normal diversion
requirement under said contract bears to the total normal
diversion requirements under all such contracts that have been
made hereunder.
The Secretary shall not enter into contracts for a total
amount of water beyond that which, in his judgment, in the
event of shortage, will result in a reasonable amount being
available for the diversion requirements for the Navajo Indian
irrigation project and the initial stage of the San Juan-Chama
project as specified in sections 2 and 8 of this Act.
No long-term contract, except contracts for the benefit of
the lands and for the purposes specified in sections 2 and 8 of
this Act, shall be entered into for the delivery of water
stored in Navajo Reservoir or of any other waters of the San
Juan River and its tributaries, as aforesaid, until the
Secretary has determined by hydrologic investigations that
sufficient water to fulfill said contract is reasonably likely
to be available for use in the State of New Mexico during the
term thereof under the allocations made in articles III and XIV
of the Upper Colorado River Basin compact, and has submitted
such determination to the Congress of the United States and the
Congress has approved such contracts: Provided, That nothing
contained in the foregoing shall be construed to forbid the
Secretary from entering into temporary water supply contracts
in the San Juan River Basin for any year in which he determines
that water legally available for use in the upper basin of the
Colorado River system would otherwise not be used there and is
not needed to fulfill the obligations of the upper division
States with respect to delivery of water at Lee Ferry.
(b) If contracts are entered into for delivery from storage
in Navajo Reservoir of water not covered by subsection (a) of
this section, such contracts shall be subject to the same
provision for sharing of available water supply in the event of
shortage as in the case of contracts required to be made
pursuant to subparagraph (a) of this section.
(c) This section shall not be applicable to the water
requirements of the existing Fruitland, Hogback, Cudai, and
Cambridge Indian irrigation projects, nor to the water required
in connection with the extension of the irrigated acreages of
the Fruitland and Hogback Indian irrigation projects in a total
amount of approximately eleven thousand acres.
(d)(1) For purposes of implementing in a year of
prospective shortage the water allocation procedures
established by subsection (a), the Secretary of the Interior
shall determine the quantity of any shortages and the
appropriate apportionment of water using the normal diversion
requirements on the flow of the San Juan River originating
above Navajo Dam based on the following criteria:
(A) The quantity of diversion or water delivery for
the current year anticipated to be necessary to
irrigate land in accordance with cropping plans
prepared by contractors.
(B) The annual diversion or water delivery demands
for the current year anticipated for non-irrigation
uses under water delivery contracts, including
contracts authorized by the Northwestern New Mexico
Rural Water Projects Act, but excluding any current
demand for surface water for placement into aquifer
storage for future recovery and use.
(C) An annual normal diversion demand of 135,000
acre-feet for the initial stage of the San Juan-Chama
Project authorized by section 8.
(2) The Secretary shall not include in the normal diversion
requirements--
(A) the quantity of water that reliably can be
anticipated to be diverted or delivered under a
contract from inflows to the San Juan River arising
below Navajo Dam under New Mexico State Engineer File
No. 3215; or
(B) the quantity of water anticipated to be supplied
through reuse.
(e)(1) If the Secretary determines that there is a shortage
of water under subsection (a), the Secretary shall respond to
the shortage in the Navajo Reservoir water supply by curtailing
releases and deliveries in the following order:
(A) The demand for delivery for uses in the State of
Arizona under the Navajo-Gallup Water Supply Project
authorized by section 303 of the Northwestern New
Mexico Rural Water Projects Act, excluding the quantity
of water anticipated to be diverted for the uses from
inflows to the San Juan River that arise below Navajo
Dam in accordance with New Mexico State Engineer File
No. 3215.
(B) The demand for delivery for uses allocated under
paragraph 8.2 of the agreement executed under section
401(a)(2) of the Northwestern New Mexico Rural Water
Projects Act, excluding the quantity of water
anticipated to be diverted for such uses under State
Engineer File No. 3215.
(C) The uses in the State of New Mexico that are
determined under subsection (d), in accordance with the
procedure for apportioning the water supply under
subsection (a).
(2) For any year for which the Secretary determines and
responds to a shortage in the Navajo Reservoir water supply,
the Secretary shall not deliver, and contractors of the water
supply shall not divert, any of the water supply for placement
into aquifer storage for future recovery and use.
(3) To determine the occurrence and amount of any shortage
to contracts entered into under this section, the Secretary
shall not include as available storage any water stored in a
top water bank in Navajo Reservoir established under section
16(a) of the Act of April 11, 1956 (commonly known as the
``Colorado River Storage Project Act'').
(f) The Secretary of the Interior shall apportion water
under subsections (a), (d), and (e) on an annual volume basis.
(g) The Secretary of the Interior may revise a
determination of shortages, apportionments, or allocations of
water under subsections (a), (d), and (e) on the basis of
information relating to water supply conditions that was not
available at the time at which the determination was made.
(h) Nothing in this section prohibits the distribution of
water in accordance with cooperative water agreements between
water users providing for a sharing of water supplies.
(i) Diversions under New Mexico State Engineer File No.
3215 shall be distributed, to the maximum extent water is
available, in proportionate amounts to the diversion demands of
contractors and subcontractors of the Navajo Reservoir water
supply that are diverting water below Navajo Dam.
* * * * * * *