[House Report 111-390]
[From the U.S. Government Publishing Office]
111th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 111-390
======================================================================
AAMODT LITIGATION SETTLEMENT ACT
_______
January 12, 2010.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Rahall, from the Committee on Natural Resources, submitted the
following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 3342]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred the
bill (H.R. 3342) to authorize the Secretary of the Interior,
acting through the Commissioner of Reclamation, to develop
water infrastructure in the Rio Grande Basin, and to approve
the settlement of the water rights claims of the Pueblos of
Nambe, Pojoaque, San Ildefonso, and Tesuque, having considered
the same, report favorably thereon with an amendment and
recommend that the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Aamodt Litigation
Settlement Act''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
TITLE I--POJOAQUE BASIN REGIONAL WATER SYSTEM
Sec. 101. Authorization of Regional Water System.
Sec. 102. Operating Agreement.
Sec. 103. Acquisition of Pueblo water supply for the Regional Water
System.
Sec. 104. Delivery and allocation of Regional Water System capacity and
water.
Sec. 105. Aamodt Settlement Pueblos' Fund.
Sec. 106. Environmental compliance.
Sec. 107. Authorization of appropriations.
TITLE II--POJOAQUE BASIN INDIAN WATER RIGHTS SETTLEMENT
Sec. 201. Settlement Agreement and contract approval.
Sec. 202. Environmental compliance.
Sec. 203. Conditions precedent and enforcement date.
Sec. 204. Waivers and releases.
Sec. 205. Effect.
SEC. 2. DEFINITIONS.
In this Act:
(1) Aamodt case.--The term ``Aamodt Case'' means 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) Acre-feet.--The term ``acre-feet'' means acre-feet of
water per year.
(3) Authority.--The term ``Authority'' means the Pojoaque
Basin Regional Water Authority described in section 9.5 of the
Settlement Agreement or an alternate entity acceptable to the
Pueblos and the County to operate and maintain the diversion
and treatment facilities, certain transmission pipelines, and
other facilities of the Regional Water System.
(4) City.--The term ``City'' means the city of Santa Fe, New
Mexico.
(5) Cost-sharing and system integration agreement.--The term
``Cost-Sharing and System Integration Agreement'' means the
agreement to be executed by the United States, the State, the
Pueblos, the County, and the City that--
(A) describes the location, capacity, and management
(including the distribution of water to customers) of
the Regional Water System; and
(B) allocates the costs of the Regional Water System
with respect to--
(i) the construction, operation, maintenance,
and repair of the Regional Water System;
(ii) rights-of-way for the Regional Water
System; and
(iii) the acquisition of water rights.
(6) County.--The term ``County'' means Santa Fe County, New
Mexico.
(7) County distribution system.--The term ``County
Distribution System'' means the portion of the Regional Water
System that serves water customers on non-Pueblo land in the
Pojoaque Basin.
(8) County water utility.--The term ``County Water Utility''
means the water utility organized by the County to--
(A) receive water distributed by the Authority; and
(B) provide the water received under subparagraph (A)
to customers on non-Pueblo land in the Pojoaque Basin.
(9) Engineering report.--The term ``Engineering Report''
means the report entitled ``Pojoaque Regional Water System
Engineering Report'' dated September 2008 and any amendments
thereto, including any modifications which may be required by
section 101(d)(2).
(10) Fund.--The term ``Fund'' means the Aamodt Settlement
Pueblos' Fund established by section 105(a).
(11) Operating agreement.--The term ``Operating Agreement''
means the agreement between the Pueblos and the County executed
under section 102(a).
(12) Operations, maintenance, and replacement costs.--
(A) In general.--The term ``operations, maintenance,
and replacement costs'' means all costs for the
operation of the Regional Water System that are
necessary for the safe, efficient, and continued
functioning of the Regional Water System to produce the
benefits described in the Settlement Agreement.
(B) Exclusion.--The term ``operations, maintenance,
and replacement costs'' does not include construction
costs or costs related to construction design and
planning.
(13) Pojoaque basin.--
(A) In general.--The term ``Pojoaque Basin'' means
the geographic area limited by a surface water divide
(which can be drawn on a topographic map), within which
area rainfall and runoff flow into arroyos, drainages,
and named tributaries that eventually drain to--
(i) the Rio Pojoaque; or
(ii) the 2 unnamed arroyos immediately south;
and
(iii) 2 arroyos (including the Arroyo Alamo)
that are north of the confluence of the Rio
Pojoaque and the Rio Grande.
(B) Inclusion.--The term ``Pojoaque Basin'' includes
the San Ildefonso Eastern Reservation recognized by
section 8 of Public Law 87-231 (75 Stat. 505).
(14) Pueblo.--The term ``Pueblo'' means each of the pueblos
of Nambe, Pojoaque, San Ildefonso, or Tesuque.
(15) Pueblos.--The term ``Pueblos'' means collectively the
Pueblos of Nambe, Pojoaque, San Ildefonso, and Tesuque.
(16) Pueblo land.--The term ``Pueblo land'' means any real
property that is--
(A) held by the United States in trust for a Pueblo
within the Pojoaque Basin;
(B)(i) owned by a Pueblo within the Pojoaque Basin
before the date on which a court approves the
Settlement Agreement; or
(ii) acquired by a Pueblo on or after the date on
which a court approves the Settlement Agreement, if the
real property is located--
(I) within the exterior boundaries of the
Pueblo, as recognized and conformed by a patent
issued under the Act of December 22, 1858 (11
Stat. 374, chapter V); or
(II) within the exterior boundaries of any
territory set aside for the Pueblo by law,
executive order, or court decree;
(C) owned by a Pueblo or held by the United States in
trust for the benefit of a Pueblo outside the Pojoaque
Basin that is located within the exterior boundaries of
the Pueblo as recognized and confirmed by a patent
issued under the Act of December 22, 1858 (11 Stat.
374, chapter V); or
(D) within the exterior boundaries of any real
property located outside the Pojoaque Basin set aside
for a Pueblo by law, executive order, or court decree,
if the land is within or contiguous to land held by the
United States in trust for the Pueblo as of January 1,
2005.
(17) Pueblo water facility.--
(A) In general.--The term ``Pueblo Water Facility''
means--
(i) a portion of the Regional Water System
that serves only water customers on Pueblo
land; and
(ii) portions of a Pueblo water system in
existence on the date of enactment of this Act
that serve water customers on non-Pueblo land,
also in existence on the date of enactment of
this Act, or their successors, that are--
(I) depicted in the final project
design, as modified by the drawings
reflecting the completed Regional Water
System; and
(II) described in the Operating
Agreement.
(B) Inclusions.--The term ``Pueblo Water Facility''
includes--
(i) the barrier dam and infiltration project
on the Rio Pojoaque described in the
Engineering Report; and
(ii) the Tesuque Pueblo infiltration pond
described in the Engineering Report.
(18) Regional water system.--
(A) In general.--The term ``Regional Water System''
means the Regional Water System described in section
101(a).
(B) Exclusions.--The term ``Regional Water System''
does not include the County or Pueblo water supply
delivered through the Regional Water System.
(19) San juan-chama project.--The term ``San Juan-Chama
Project'' means the Project authorized by section 8 of the Act
of June 13, 1962 (76 Stat. 96, 97), and the Act of April 11,
1956 (70 Stat. 105).
(20) San juan-chama project act.--The term ``San Juan-Chama
Project Act'' means sections 8 through 18 of the Act of June
13, 1962 (76 Stat. 96, 97).
(21) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(22) Settlement agreement.--The term ``Settlement Agreement''
means the stipulated and binding agreement among the State, the
Pueblos, the United States, the County, and the City dated
January 19, 2006, and signed by all of the government parties
to the Settlement Agreement (other than the United States) on
May 3, 2006, and as amended in conformity with this Act.
(23) State.--The term ``State'' means the State of New
Mexico.
TITLE I--POJOAQUE BASIN REGIONAL WATER SYSTEM
SEC. 101. AUTHORIZATION OF REGIONAL WATER SYSTEM.
(a) In General.--The Secretary, acting through the Commissioner of
Reclamation, shall plan, design, and construct a regional water system
in accordance with the Settlement Agreement, to be known as the
``Regional Water System''--
(1) to divert and distribute water to the Pueblos and to the
County Water Utility, in accordance with the Engineering
Report; and
(2) that consists of--
(A) surface water diversion facilities at San
Ildefonso Pueblo on the Rio Grande; and
(B) any treatment, transmission, storage and
distribution facilities and wellfields for the County
Distribution System and Pueblo Water Facilities that
are necessary to supply 4,000 acre-feet of water within
the Pojoaque Basin, unless modified in accordance with
subsection (d)(2).
(b) Final Project Design.--The Secretary shall issue a final project
design within 90 days of completion of the environmental compliance
described in section 106 for the Regional Water System that--
(1) is consistent with the Engineering Report; and
(2) includes a description of any Pueblo Water Facilities.
(c) Acquisition of Land; Water Rights.--
(1) Acquisition of land.--Upon request, and in exchange for
the funding which shall be provided in section 107(c), the
Pueblos shall consent to the grant of such easements and
rights-of-way as may be necessary for the construction of the
Regional Water System at no cost to the Secretary. To the
extent that the State or County own easements or rights-of-way
that may be used for construction of the Regional Water System,
the State or County shall provide that land or interest in land
as necessary for construction at no cost to the Secretary. The
Secretary shall acquire any other land or interest in land that
is necessary for the construction of the Regional Water System.
(2) Water rights.--The Secretary shall not condemn water
rights for purposes of the Regional Water System.
(d) Conditions for Construction.--
(1) In general.--The Secretary shall not begin construction
of the Regional Water System facilities until the date on
which--
(A) the Secretary executes--
(i) the Settlement Agreement; and
(ii) the Cost-Sharing and System Integration
Agreement; and
(B) the State and the County have entered into an
agreement with the Secretary to contribute the non-
Federal share of the costs of the construction in
accordance with the Cost-Sharing and System Integration
Agreement.
(2) Modifications to regional water system.--
(A) In general.--The State and the County, in
agreement with the Pueblos, the City, and other
signatories to the Cost-Sharing and System Integration
Agreement, may modify the extent, size, and capacity of
the County Distribution System as set forth in the
Cost-Sharing and System Integration Agreement.
(B) Effect.--A modification under subparagraph (A)--
(i) shall not affect implementation of the
Settlement Agreement so long as the provisions
in section 203 are satisfied; and
(ii) may result in an adjustment of the State
and County cost-share allocation as set forth
in the Cost-Sharing and System Integration
Agreement.
(e) Applicable Law.--The Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450 et seq.) shall not apply to the design
and construction of the Regional Water System.
(f) Construction Costs.--
(1) Pueblo water facilities.--
(A) In general.--Except as provided in subparagraph
(B), the expenditures of the Secretary to construct the
Pueblo Water Facilities under this section shall not
exceed $106,400,000.
(B) Exception.--The amount described in subparagraph
(A) shall be increased or decreased, as appropriate,
based on ordinary fluctuations in construction costs
since October 1, 2006, as determined using applicable
engineering cost indices.
(2) Costs to pueblo.--The costs incurred by the Secretary in
carrying out activities to construct the Pueblo Water
Facilities under this section shall not be reimbursable to the
United States.
(3) County distribution system.--The costs of constructing
the County Distribution System shall be at State and local
expense.
(g) State and Local Capital Obligations.--The State and local capital
obligations for the Regional Water System described in the Cost-Sharing
and System Integration Agreement shall be satisfied on the payment of
the State and local capital obligations described in the Cost-Sharing
and System Integration Agreement.
(h) Conveyance of Regional Water System Facilities.--
(1) In general.--Subject to paragraph (2), on completion of
the construction of the Regional Water System, the Secretary,
in accordance with the Operating Agreement, shall convey to--
(A) each Pueblo the portion of any Pueblo Water
Facility that is located within the boundaries of the
Pueblo, including any land or interest in land located
within the boundaries of the Pueblo that is acquired by
the United States for the construction of the Pueblo
Water Facility;
(B) the County the County Distribution System,
including any land or interest in land acquired by the
United States for the construction of the County
Distribution System; and
(C) the Authority any portions of the Regional Water
System that remain after making the conveyances under
subparagraphs (A) and (B), including any land or
interest in land acquired by the United States for the
construction of the portions of the Regional Water
System.
(2) Conditions for conveyance.--The Secretary shall not
convey any portion of the Regional Water System facilities
under paragraph (1) until the date on which--
(A) construction of the Regional Water System is
complete; and
(B) the Operating Agreement is executed in accordance
with section 102.
(3) Subsequent conveyance.--On conveyance by the Secretary
under paragraph (1), the Pueblos, the County, and the Authority
shall not reconvey any portion of the Regional Water System
conveyed to the Pueblos, the County, and the Authority,
respectively, unless the reconveyance is authorized by an Act
of Congress enacted after the date of enactment of this Act.
(4) Interest of the united states.--On conveyance of a
portion of the Regional Water System under paragraph (1), the
United States shall have no further right, title, or interest
in and to the portion of the Regional Water System conveyed.
(5) Additional construction.--On conveyance of a portion of
the Regional Water System under paragraph (1), the Pueblos,
County, or the Authority, as applicable, may, at the expense of
the Pueblos, County, or the Authority, construct any additional
infrastructure that is necessary to fully use the water
delivered by the Regional Water System.
(6) Liability.--
(A) In general.--Effective on the date of conveyance
of any land or facility under this section, 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 and facilities
conveyed, other than damages caused by acts of
negligence 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'').
(7) Effect.--Nothing in any transfer of ownership provided or
any conveyance thereto as provided in this section shall
extinguish the right of any Pueblo, the County, or the Regional
Water Authority to the continuous use and benefit of each
easement or right of way for the use, operation, maintenance,
repair, and replacement of Pueblo Water Facilities, the County
Distribution System or the Regional Water System or for
wastewater purposes as provided in the Cost-Sharing and System
Integration Agreement.
SEC. 102. OPERATING AGREEMENT.
(a) In General.--The Pueblos and the County shall submit to the
Secretary an executed Operating Agreement for the Regional Water System
that is consistent with this Act, the Settlement Agreement, and the
Cost-Sharing and System Integration Agreement not later than 180 days
after the later of--
(1) the date of completion of environmental compliance and
permitting; or
(2) the date of issuance of a final project design for the
Regional Water System under section 101(b).
(b) Approval.--Not later than 180 days after receipt of the operating
agreement described in subsection (a), the Secretary shall approve the
Operating Agreement upon determination that the Operating Agreement is
consistent with this Act, the Settlement Agreement, and the Cost-
Sharing and System Integration Agreement.
(c) Contents.--The Operating Agreement shall include--
(1) provisions consistent with the Settlement Agreement and
the Cost-Sharing and System Integration Agreement and necessary
to implement the intended benefits of the Regional Water System
described in those documents;
(2) provisions for--
(A) the distribution of water conveyed through the
Regional Water System, including a delineation of--
(i) distribution lines for the County
Distribution System;
(ii) distribution lines for the Pueblo Water
Facilities; and
(iii) distribution lines that serve both--
(I) the County Distribution System;
and
(II) the Pueblo Water Facilities;
(B) the allocation of the Regional Water System
capacity;
(C) the terms of use of unused water capacity in the
Regional Water System;
(D) the construction of additional infrastructure and
the acquisition of associated rights-of-way or
easements necessary to enable any of the Pueblos or the
County to fully use water allocated to the Pueblos or
the County from the Regional Water System, including
provisions addressing when the construction of such
additional infrastructure requires approval by the
Authority;
(E) the allocation and payment of annual operation,
maintenance, and replacement costs for the Regional
Water System, including the portions of the Regional
Water System that are used to treat, transmit, and
distribute water to both the Pueblo Water Facilities
and the County Water Utility;
(F) the operation of wellfields located on Pueblo
land;
(G) the transfer of any water rights necessary to
provide the Pueblo water supply described in section
103(a);
(H) the operation of the Regional Water System with
respect to the water supply, including the allocation
of the water supply in accordance with section
3.1.8.4.2 of the Settlement Agreement so that, in the
event of a shortage of supply to the Regional Water
System, the supply to each of the Pueblos' and to the
County's distribution system shall be reduced on a
prorata basis, in proportion to each distribution
system's most current annual use; and
(I) dispute resolution; and
(3) provisions for operating and maintaining the Regional
Water System facilities before and after conveyance under
section 101(h), including provisions to--
(A) ensure that--
(i) the operation of, and the diversion and
conveyance of water by, the Regional Water
System is in accordance with the Settlement
Agreement;
(ii) the wells in the Regional Water System
are used in conjunction with the surface water
supply of the Regional Water System to ensure a
reliable firm supply of water to all users of
the Regional Water System, consistent with the
intent of the Settlement Agreement that surface
supplies will be used to the maximum extent
feasible;
(iii) the respective obligations regarding
delivery, payment, operation, and management
are enforceable; and
(iv) the County has the right to serve any
new water users located on non-Pueblo land in
the Pojoaque Basin; and
(B) allow for any aquifer storage and recovery
projects that are approved by the Office of the New
Mexico State Engineer.
(d) Effect.--Nothing in this Act precludes the Operating Agreement
from authorizing phased or interim operations if the Regional Water
System is constructed in phases.
SEC. 103. ACQUISITION OF PUEBLO WATER SUPPLY FOR THE REGIONAL WATER
SYSTEM.
(a) In General.--For the purpose of providing a reliable firm supply
of water from the Regional Water System for the Pueblos in accordance
with the Settlement Agreement, the Secretary, on behalf of the Pueblos,
shall--
(1) acquire water rights to--
(A) 302 acre-feet of Nambe reserved water described
in section 2.6.2 of the Settlement Agreement pursuant
to section 107(c)(1)(C); and
(B) 1141 acre-feet from water acquired by the County
for water rights commonly referred to as ``Top of the
World'' rights in the Aamodt Case;
(2) enter into a contract with the Pueblos for 1,079 acre-
feet in accordance with section 11 of the San Juan-Chama
Project Act; and
(3) by application to the State Engineer, seek approval to
divert the water acquired and made available under paragraphs
(1) and (2) at the points of diversion for the Regional Water
System, consistent with the Settlement Agreement and the Cost-
Sharing and System Integration Agreement.
(b) Forfeiture.--The nonuse of the water supply secured by the
Secretary for the Pueblos under subsection (a) shall in no event result
in forfeiture, abandonment, relinquishment, or other loss thereof.
(c) Trust.--The Pueblo water supply secured under subsection (a)
shall be held by the United States in trust for the Pueblos.
(d) Applicable Law.--The water supply made available pursuant to
subsection (a)(2) shall be subject to the San Juan-Chama Project Act,
and no preference shall be provided to the Pueblos as a result of
subsection (c) with regard to the delivery or distribution of San Juan-
Chama Project water or the management or operation of the San Juan-
Chama Project.
(e) Contract for San Juan-Chama Project Water Supply.--With respect
to the contract for the water supply required by subsection (a)(2),
such San Juan-Chama Project contract shall be pursuant to the following
terms:
(1) Waivers.--Notwithstanding the provisions of the San Juan-
Chama Project Act, or any other provision of law--
(A) the Secretary shall waive the entirety of the
Pueblos' share of the construction costs for the San
Juan-Chama Project, and pursuant to that waiver, the
Pueblos' share of all construction costs for the San
Juan-Chama Project, inclusive of both principal and
interest, due from 1972 to the execution of the
contract required by subsection (a)(2), shall be
nonreimbursable;
(B) the Secretary's waiver of each Pueblo's share of
the construction costs for the San Juan-Chama Project
will not result in an increase in the pro rata shares
of other San Juan-Chama Project water contractors, but
such costs shall be absorbed by the United States
Treasury or otherwise appropriated to the Department of
the Interior; and
(C) the costs associated with any water made
available from the San Juan-Chama Project which were
determined nonreimbursable and nonreturnable pursuant
to Public Law No. 88-293, 78 Stat. 171 (March 26,
1964), shall remain nonreimbursable and nonreturnable.
(2) Termination.--The contract shall provide that it shall
terminate only upon the following conditions--
(A) failure of the United States District Court for
the District of New Mexico to enter a final decree for
the Aamodt Case by December 15, 2012, or within the
time period of any extension of that deadline granted
by the court; or
(B) entry of an order by the United States District
Court for the District of New Mexico voiding the final
decree and Settlement Agreement for the Aamodt Case
pursuant to section 10.3 of the Settlement Agreement.
(f) Limitation.--The Secretary shall use the water supply secured
under subsection (a) only for the purposes described in the Settlement
Agreement.
(g) Fulfillment of Water Supply Acquisition Obligations.--Compliance
with subsections (a) through (f) shall satisfy any and all obligations
of the Secretary to acquire or secure a water supply for the Pueblos
pursuant to the Settlement Agreement.
(h) Rights of Pueblos in Settlement Agreement Unaffected.--
Notwithstanding the provisions of subsections (a) through (g), the
Pueblos, the County or the Regional Water Authority may acquire any
additional water rights to ensure all parties to the Settlement
Agreement receive the full allocation of water provided by the
Settlement Agreement and nothing in this Act amends or modifies the
quantities of water allocated to the Pueblos thereunder.
SEC. 104. DELIVERY AND ALLOCATION OF REGIONAL WATER SYSTEM CAPACITY AND
WATER.
(a) Allocation of Regional Water System Capacity.--
(1) In general.--The Regional Water System shall have the
capacity to divert from the Rio Grande a quantity of water
sufficient to provide--
(A) up to 4,000 acre-feet of consumptive use of
water; and
(B) the requisite peaking capacity described in--
(i) the Engineering Report; and
(ii) the final project design.
(2) Allocation to the pueblos and county water utility.--Of
the capacity described in paragraph (1)--
(A) there shall be allocated to the Pueblos--
(i) sufficient capacity for the conveyance of
2,500 acre-feet consumptive use; and
(ii) the requisite peaking capacity for the
quantity of water described in clause (i); and
(B) there shall be allocated to the County Water
Utility--
(i) sufficient capacity for the conveyance of
up to 1,500 acre-feet consumptive use; and
(ii) the requisite peaking capacity for the
quantity of water described in clause (i).
(3) Applicable law.--Water shall be allocated to the Pueblos
and the County Water Utility under this subsection in
accordance with--
(A) this title;
(B) the Settlement Agreement; and
(C) the Operating Agreement.
(b) Delivery of Regional Water System Water.--The Authority shall
deliver water from the Regional Water System--
(1) to the Pueblos water in a quantity sufficient to allow
full consumptive use of up to 2,500 acre-feet per year of water
rights by the Pueblos in accordance with--
(A) the Settlement Agreement;
(B) the Operating Agreement; and
(C) this title; and
(2) to the County water in a quantity sufficient to allow
full consumptive use of up to 1,500 acre-feet per year of water
rights by the County Water Utility in accordance with--
(A) the Settlement Agreement;
(B) the Operating Agreement; and
(C) this title.
(c) Additional Use of Allocation Quantity and Unused Capacity.--The
Regional Water System may be used to--
(1) provide for use of return flow credits to allow for full
consumptive use of the water allocated in the Settlement
Agreement to each of the Pueblos and to the County; and
(2) convey water allocated to one of the Pueblos or the
County Water Utility for the benefit of another Pueblo or the
County Water Utility or allow use of unused capacity by each
other through the Regional Water System in accordance with an
intergovernmental agreement between the Pueblos, or between a
Pueblo and County Water Utility, as applicable, if--
(A) such intergovernmental agreements are consistent
with the Operating Agreement, the Settlement Agreement,
and this Act;
(B) capacity is available without reducing water
delivery to any Pueblo or the County Water Utility in
accordance with the Settlement Agreement, unless the
County Water Utility or Pueblo contracts for a
reduction in water delivery or Regional Water System
capacity;
(C) the Pueblo or County Water Utility contracting
for use of the unused capacity or water has the right
to use the water under applicable law; and
(D) any agreement for the use of unused capacity or
water provides for payment of the operation,
maintenance, and replacement costs associated with the
use of capacity or water.
SEC. 105. AAMODT SETTLEMENT PUEBLOS' FUND.
(a) Establishment of the Aamodt Settlement Pueblos' Fund.--There is
established in the Treasury of the United States a fund, to be known as
the ``Aamodt Settlement Pueblos' Fund,'' consisting of--
(1) such amounts as are made available to the Fund under
section 107(c) or other authorized sources; and
(2) any interest earned from investment of amounts in the
Fund under subsection (b).
(b) Management of the Fund.--The Secretary shall manage the Fund,
invest amounts in the Fund, and make amounts available from the Fund
for distribution to the Pueblos in accordance with--
(1) the American Indian Trust Fund Management Reform Act of
1994 (25 U.S.C. 4001 et seq.); and
(2) this Act.
(c) Investment of the Fund.--On the date set forth in section
203(a)(1), the Secretary shall invest amounts in the 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.).
(d) Tribal Management Plan.--
(1) In general.--A Pueblo may withdraw all or part of the
Pueblo's portion of the Fund on approval by the Secretary of a
tribal management plan as described in the American Indian
Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et
seq.).
(2) Requirements.--In addition to the requirements under the
American Indian Trust Fund Management Reform Act of 1994 (25
U.S.C. 4001 et seq.), the tribal management plan shall require
that a Pueblo spend any amounts withdrawn from the Fund in
accordance with the purposes described in section 107(c).
(3) 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
Fund under an approved tribal management plan are used in
accordance with this title.
(4) Liability.--If a Pueblo or the Pueblos exercise the right
to withdraw amounts from the Fund, neither the Secretary nor
the Secretary of the Treasury shall retain any liability for
the expenditure or investment of the amounts withdrawn.
(5) Expenditure plan.--
(A) In general.--The Pueblos shall submit to the
Secretary for approval an expenditure plan for any
portion of the amounts in the Fund that the Pueblos do
not withdraw under this subsection.
(B) Description.--The expenditure plan shall describe
the manner in which, and the purposes for which,
amounts remaining in the 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, the Settlement
Agreement, and the Cost-Sharing and System Integration
Agreement.
(D) Annual report.--The Pueblos shall submit to the
Secretary an annual report that describes all
expenditures from the Fund during the year covered by
the report.
(6) No per capita payments.--No part of the principal of the
Fund, or the interest or income accruing on the principal shall
be distributed to any member of a Pueblo on a per capita basis.
(7) Availability of amounts from the fund.--
(A) Approval of settlement agreement.--Amounts made
available under subparagraphs (A) and (C) of section
107(c)(1) or from other authorized sources shall be
available for expenditure or withdrawal only after the
date on which the United States District Court for the
District of New Mexico issues an order approving the
Settlement Agreement.
(B) Completion of certain portions of regional water
system.--Amounts made available under section
107(c)(1)(B) or from other authorized sources shall be
available for expenditure or withdrawal only after
those portions of the Regional Water System described
in section 1.5.24 of the Settlement Agreement have been
declared substantially complete by the Secretary.
(C) Failure to fulfill conditions precedent.--If the
conditions precedent in section 203 have not been
fulfilled by September 15, 2017, the United States
shall be entitled to set off any funds expended or
withdrawn from the amounts appropriated pursuant to
section 107(c), together with any interest accrued,
against any claims asserted by the Pueblos against the
United States relating to the water rights in the
Pojoaque Basin.
SEC. 106. ENVIRONMENTAL COMPLIANCE.
(a) In General.--In carrying out this title, 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.).
(b) National Environmental Policy Act.--Nothing in this Act affects
the outcome of any analysis conducted by the Secretary or any other
Federal official under the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.).
SEC. 107. AUTHORIZATION OF APPROPRIATIONS.
(a) Regional Water System.--
(1) In general.--Subject to paragraph (4), there is
authorized to be appropriated to the Secretary for the
planning, design, and construction of the Regional Water System
and the conduct of environmental compliance activities under
section 106 an amount not to exceed $106,400,000, as adjusted
under paragraph (3), for the period of fiscal years 2010
through 2022, to remain available until expended.
(2) Priority of funding.--Of the amounts authorized under
paragraph (1), the Secretary shall give priority to funding--
(A) the construction of the San Ildefonso portion of
the Regional Water System, consisting of--
(i) the surface water diversion, treatment,
and transmission facilities at San Ildefonso
Pueblo; and
(ii) the San Ildefonso Pueblo portion of the
Pueblo Water Facilities; and
(B) that part of the Regional Water System providing
475 acre-feet to Pojoaque Pueblo pursuant to section
2.2 of the Settlement Agreement.
(3) Adjustment.--The amount authorized under paragraph (1)
shall be adjusted annually to account for increases in
construction costs since October 1, 2006, as determined using
applicable engineering cost indices.
(4) Limitations.--
(A) In general.--No amounts shall be made available
under paragraph (1) for the construction of the
Regional Water System until the date on which the
United States District Court for the District of New
Mexico issues an order approving the Settlement
Agreement.
(B) Record of decision.--No amounts made available
under paragraph (1) shall be expended unless the record
of decision issued by the Secretary after completion of
an environmental impact statement provides for a
preferred alternative that is in substantial compliance
with the proposed Regional Water System, as defined in
the Engineering Report.
(b) Acquisition of Water Rights.--There is authorized to be
appropriated to the Secretary funds for the acquisition of the water
rights under section 103(a)(1)(B)--
(1) in the amount of $5,400,000.00 if such acquisition is
completed by December 31, 2010; and
(2) the amount authorized under paragraph (b)(1) shall be
adjusted according to the CPI Urban Index commencing January 1,
2011.
(c) Aamodt Settlement Pueblos' Fund.--
(1) In general.--There is authorized to be appropriated to
the Fund the following amounts for the period of fiscal years
2010 through 2022:
(A) $15,000,000, which shall be allocated to the
Pueblos, in accordance with section 2.7.1 of the
Settlement Agreement, for the rehabilitation,
improvement, operation, maintenance, and replacement of
the agricultural delivery facilities, waste water
systems, and other water-related infrastructure of the
applicable Pueblo. The amount authorized herein shall
be adjusted according to the CPI Urban Index commencing
October 1, 2006.
(B) $37,500,000, which shall be allocated to an
account, to be established not later than January 1,
2016, to assist the Pueblos in paying the Pueblos'
share of the cost of operating, maintaining, and
replacing the Pueblo Water Facilities and the Regional
Water System.
(C) $5,000,000 and any interest thereon, which shall
be allocated to the Pueblo of Nambe for the acquisition
of the Nambe reserved water rights in accordance with
section 103(a)(1)(A). The amount authorized herein
shall be adjusted according to the CPI Urban Index
commencing January 1, 2011. The funds provided under
this section may be used by the Pueblo of Nambe only
for the acquisition of land, other real property
interests, or economic development.
(2) Operation, maintenance, and replacement costs.--
(A) In general.--Prior to conveyance of the Regional
Water System pursuant to section 101, the Secretary is
authorized to and shall pay any operation, maintenance
or replacement costs associated with the Pueblo Water
Facilities or the Regional Water System up to an amount
that does not exceed $5,000,000, which is authorized to
be appropriated to the Secretary.
(B) Obligation of federal government after
completion.--The amount authorized under subparagraph
(A) shall expire after the date on which construction
of the Regional Water System is completed and the
amounts required to be deposited in the account have
been deposited under this section by the Federal
Government.
TITLE II--POJOAQUE BASIN INDIAN WATER RIGHTS SETTLEMENT
SEC. 201. SETTLEMENT AGREEMENT AND CONTRACT APPROVAL.
(a) Approval.--To the extent the Settlement Agreement and the Cost-
Sharing and System Integration Agreement do not conflict with this Act,
the Settlement Agreement and the Cost-Sharing and System Integration
Agreement (including any amendments to the Settlement Agreement and the
Cost-Sharing and System Integration Agreement that are executed to make
the Settlement Agreement or the Cost-Sharing and System Integration
Agreement consistent with this Act) are authorized, ratified, and
confirmed.
(b) Execution.--To the extent the Settlement Agreement and the Cost-
Sharing and System Integration Agreement do not conflict with this Act,
the Secretary shall execute the Settlement Agreement and the Cost-
Sharing and System Integration Agreement (including any amendments that
are necessary to make the Settlement Agreement or the Cost-Sharing and
System Integration Agreement consistent with this Act).
(c) Authorities of the Pueblos.--
(1) In general.--Each of the Pueblos may enter into contracts
to lease or exchange water rights or to forbear undertaking new
or expanded water uses for water rights recognized in section
2.1 of the Settlement Agreement for use within the Pojoaque
Basin in accordance with the other limitations of section 2.1.5
of the Settlement Agreement provided that section 2.1.5 is
amended accordingly.
(2) Execution.--The Secretary shall not execute the
Settlement Agreement until such amendment is accomplished under
paragraph (1).
(3) Approval by secretary.--Consistent with the Settlement
Agreement as amended under paragraph (1), the Secretary shall
approve or disapprove a lease entered into under paragraph (1).
(4) Prohibition on permanent alienation.--No lease or
contract under paragraph (1) shall be for a term exceeding 99
years, nor shall any such lease or contract provide for
permanent alienation of any portion of the water rights made
available to the Pueblos under the Settlement Agreement.
(5) Applicable law.--Section 2116 of the Revised Statutes (25
U.S.C. 177) shall not apply to any lease or contract entered
into under paragraph (1).
(6) Leasing or marketing of water supply.--The water supply
provided on behalf of the Pueblos pursuant to section 103(a)(1)
may only be leased or marketed by any of the Pueblos pursuant
to the intergovernmental agreements described in section
104(c)(2).
(d) Amendments to Contracts.--The Secretary shall amend the contracts
relating to the Nambe Falls Dam and Reservoir that are necessary to use
water supplied from the Nambe Falls Dam and Reservoir in accordance
with the Settlement Agreement.
SEC. 202. ENVIRONMENTAL COMPLIANCE.
(a) Effect of Execution of Settlement Agreement.--The execution of
the Settlement Agreement under section 201(b) 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. 203. CONDITIONS PRECEDENT AND ENFORCEMENT DATE.
(a) Conditions Precedent.--
(1) In general.--Upon the fulfillment of the conditions
precedent described in paragraph (2), the Secretary shall
publish in the Federal Register by September 15, 2017, a
statement of finding that the conditions have been fulfilled.
(2) Requirements.--The conditions precedent referred to in
paragraph (1) are the conditions that--
(A) to the extent that the Settlement Agreement
conflicts with this title, the Settlement Agreement has
been revised to conform with this title;
(B) the Settlement Agreement, so revised, including
waivers and releases pursuant to section 204, has been
executed by the appropriate parties and the Secretary;
(C) Congress has fully appropriated, or the Secretary
has provided from other authorized sources, all funds
authorized by section 107, with the exception of
subsection (a)(1) of that section, by December 15,
2016;
(D) the Secretary has acquired and entered into
appropriate contracts for the water rights described in
section 103(a);
(E) for purposes of section 103(a), permits have been
issued by the New Mexico State Engineer to the Regional
Water Authority to change the points of diversion to
the mainstem of the Rio Grande for the diversion and
consumptive use of at least 2,381 acre-feet by the
Pueblos as part of the water supply for the Regional
Water System, subject to the conditions that--
(i) the permits shall be free of any
condition that materially adversely affects the
ability of the Pueblos or the Regional Water
Authority to divert or use the Pueblo water
supply described in section 103(a), including
water rights acquired in addition to those
described in section 103(a), in accordance with
section 103(g); and
(ii) the Settlement Agreement shall establish
the means to address any permit conditions to
ensure the ability of the Pueblos to fully
divert and consume at least 2,381 acre-feet as
part of the water supply for the Regional Water
System, including defining the conditions that
will not constitute a material adverse affect;
(F) the State has enacted any necessary legislation
and provided any funding that may be required under the
Settlement Agreement;
(G) a partial final decree that sets forth the water
rights and other rights to water to which the Pueblos
are entitled under the Settlement Agreement and this
title and that substantially conforms to the Settlement
Agreement has been approved by the United States
District Court for the District of New Mexico; and
(H) a final decree that sets forth the water rights
for all parties to the Aamodt Case and that
substantially conforms to the Settlement Agreement has
been approved by the United States District Court for
the District of New Mexico by June 15, 2017.
(b) Expiration Date.--If all the conditions precedent described in
subsection (a)(2) have not been fulfilled by September 15, 2017--
(1) the Settlement Agreement and this Act including waivers
described in those documents shall no longer be effective; and
(2) any funds that have been appropriated under this Act but
not expended shall immediately revert to the general fund of
the United States Treasury.
(c) Enforcement Date.--The Settlement Agreement shall become
enforceable as of the date that the United States District Court for
the District of New Mexico enters a partial final decree pursuant to
subsection (a)(2)(E) and an Interim Administrative Order consistent
with the Settlement Agreement.
(d) Effectiveness of Waivers.--The waivers and releases executed
pursuant to section 204 shall become effective as of the date that the
Secretary publishes the notice required by subsection (a)(1).
(e) Requirements for Determination of Substantial Completion of the
Regional Water System.--
(1) Criteria for substantial completion of regional water
system.--Subject to the provisions in section 101(d) concerning
the extent, size, and capacity of the County Distribution
System, the Regional Water System shall be determined to be
substantially completed if the infrastructure has been
constructed capable of--
(A) diverting, treating, transmitting, and
distributing a supply of 2,500 acre-feet of water to
the Pueblos; and
(B) diverting, treating, and transmitting the
quantity of water specified in the Engineering Report
to the County Distribution System.
(2) Consultation.--On or after June 30, 2021, at the request
of 1 or more of the Pueblos, the Secretary shall consult with
the Pueblos and confer with the County and the State on whether
the criteria in paragraph (1) for substantial completion of the
Regional Water System have been met or will be met by June 30,
2024.
(3) Written determination by secretary.--Not earlier than
June 30, 2021, at the request of 1 or more of the Pueblos and
after the consultation required by paragraph (2), the Secretary
shall--
(A) determine whether the Regional Water System has
been substantially completed based on the criteria
described in paragraph (1); and
(B) submit a written notice of the determination
under subparagraph (A) to--
(i) the Pueblos;
(ii) the County; and
(iii) the State.
(4) Right to review.--
(A) In general.--A determination by the Secretary
under paragraph (3)(A) shall be considered to be a
final agency action subject to judicial review by the
Decree Court under sections 701 through 706 of title 5,
United States Code.
(B) Failure to make timely determination.--
(i) In general.--If a Pueblo requests a
written determination under paragraph (3) and
the Secretary fails to make such a written
determination by the date described in clause
(ii), there shall be a rebuttable presumption
that the failure constitutes agency action
unlawfully withheld or unreasonably delayed
under section 706 of title 5, United States
Code.
(ii) Date.--The date referred to in clause
(i) is the date that is the later of--
(I) the date that is 180 days after
the date of receipt by the Secretary of
the request by the Pueblo; and
(II) June 30, 2023.
(C) Effect of act.--Nothing in this Act gives any
Pueblo or Settlement Party the right to judicial review
of a determination of the Secretary regarding whether
the Regional Water System has been substantially
completed except under subchapter II of chapter 5, and
chapter 7, of title 5, United States Code (commonly
known as the ``Administrative Procedure Act'').
(5) Right to void final decree.--
(A) In general.--Not later than June 30, 2024, on a
determination by the Secretary, after consultation with
the Pueblos, that the Regional Water System is not
substantially complete, 1 or more of the Pueblos, or
the United States acting on behalf of a Pueblo, shall
have the right to notify the Decree Court of the
determination.
(B) Effect.--The Final Decree shall have no force or
effect on a finding by the Decree Court that a Pueblo,
or the United States acting on behalf of a Pueblo, has
submitted proper notification under subparagraph (A).
(f) Voiding of Waivers.--If the Final Decree is void under subsection
(e)(5)--
(1) the Settlement Agreement shall no longer be effective;
(2) the waivers and releases executed pursuant to section 204
shall no longer be effective; and
(3) any unexpended Federal funds, together with any interest
earned on those funds, and title to any property acquired or
constructed with expended Federal funds shall be returned to
the Federal Government, unless otherwise agreed to by the
Pueblos and the United States and approved by Congress.
SEC. 204. WAIVERS AND RELEASES.
(a) Claims by the Pueblos and the United States.--In return for
recognition of the Pueblos' water rights and other benefits, including
waivers and releases by non-Pueblo parties, as set forth in the
Settlement Agreement and this Act, the Pueblos, on behalf of themselves
and their members, and the United States acting in its capacity as
trustee for the Pueblos are authorized to execute a waiver and release
of--
(1) all claims for water rights in the Pojoaque Basin that
the Pueblos, or the United States acting in its capacity as
trustee for the Pueblos, asserted, or could have asserted, in
any proceeding, including the Aamodt Case, up to and including
the waiver effectiveness date identified in section 203(d),
except to the extent that such rights are recognized in the
Settlement Agreement or this Act;
(2) all claims for water rights for lands in the Pojoaque
Basin and for rights to use water in the Pojoaque Basin that
the Pueblos, or the United States acting in its capacity as
trustee for the Pueblos, might be able to otherwise assert in
any proceeding not initiated on or before the date of enactment
of this title, except to the extent that such rights are
recognized in the Settlement Agreement or this Act;
(3) all claims for damages, losses or injuries to water
rights or claims of interference with, diversion or taking of
water (including claims for injury to land resulting from such
damages, losses, injuries, interference with, diversion, or
taking) for land within the Pojoaque Basin that accrued at any
time up to and including the waiver effectiveness date
identified in section 203(d);
(4) their defenses in the Aamodt Case to the claims
previously asserted therein by other parties to the Settlement
Agreement;
(5) all pending and future inter se challenges to the
quantification and priority of water rights of non-Pueblo wells
in the Pojoaque Basin, except as provided by section 2.8 of the
Settlement Agreement;
(6) all pending and future inter se challenges against other
parties to the Settlement Agreement;
(7) all claims for damages, losses, or injuries to water
rights or claims of interference with, diversion or taking of
water (including claims for injury to land resulting from such
damages, losses, injuries, interference with, diversion, or
taking of water) attributable to City of Santa Fe pumping of
groundwater that has effects on the ground and surface water
supplies of the Pojoaque Basin, provided that this waiver shall
not be effective by the Pueblo of Tesuque unless there is a
water resources agreement executed between the Pueblo of
Tesuque and the City of Santa Fe; and
(8) all claims for damages, losses, or injuries to water
rights or claims of interference with, diversion or taking of
water (including claims for injury to land resulting from such
damages, losses, injuries, interference with, diversion, or
taking of water) attributable to County of Santa Fe pumping of
groundwater that has effects on the ground and surface water
supplies of the Pojoaque Basin.
(b) Claims by the Pueblos Against the United States.--The Pueblos, on
behalf of themselves and their members, are authorized to execute a
waiver and release of--
(1) all claims against the United States, its agencies, or
employees, relating to claims for water rights in or water of
the Pojoaque Basin or for rights to use water in the Pojoaque
Basin that the United States acting in its capacity as trustee
for the Pueblos asserted, or could have asserted, in any
proceeding, including the Aamodt Case;
(2) all claims against the United States, its agencies, or
employees relating to damages, losses, or injuries to water,
water rights, land, or natural resources due to loss of water
or water rights (including damages, losses or injuries to
hunting, fishing, gathering or cultural rights due to loss of
water or water rights; claims relating to interference with,
diversion or taking of water or water rights; or claims
relating to failure to protect, acquire, replace, or develop
water, water rights or water infrastructure) within the
Pojoaque Basin that first accrued at any time up to and
including the waiver effectiveness date identified in section
203(d);
(3) all claims against the United States, its agencies, or
employees for an accounting of funds appropriated by Acts,
including the Act of December 22, 1927 (45 Stat. 2), the Act of
March 4, 1929 (45 Stat. 1562), the Act of March 26, 1930 (46
Stat. 90), the Act of February 14, 1931 (46 Stat. 1115), the
Act of March 4, 1931 (46 Stat. 1552), the Act of July 1, 1932
(47 Stat. 525), the Act of June 22, 1936 (49 Stat. 1757), the
Act of August 9, 1937 (50 Stat. 564), and the Act of May 9,
1938 (52 Stat. 291), as authorized by the Pueblo Lands Act of
June 7, 1924 (43 Stat. 636), and the Pueblo Lands Act of May
31, 1933 (48 Stat. 108), and for breach of Trust relating to
funds for water replacement appropriated by said Acts that
first accrued before the date of enactment of this Act;
(4) all claims against the United States, its agencies, or
employees relating to the pending litigation of claims relating
to the Pueblos' water rights in the Aamodt Case; and
(5) all claims against the United States, its agencies, or
employees relating to the negotiation, Execution or the
adoption of the Settlement Agreement, exhibits thereto, the
Partial Final Decree, the Final Decree, or this Act.
(c) Reservation of Rights and Retention of Claims.--Notwithstanding
the waivers and releases authorized in this Act, the Pueblos on behalf
of themselves and their members and the United States acting in its
capacity as trustee for the Pueblos retain.--
(1) all claims for enforcement of the Settlement Agreement,
the Cost-Sharing and System Integration Agreement, the Final
Decree, including the Partial Final Decree, the San Juan-Chama
Project contract between the Pueblos and the United States or
this Act;
(2) all rights to use and protect water rights acquired after
the date of enactment of this Act;
(3) all rights to use and protect water rights acquired
pursuant to state law to the extent not inconsistent with the
Partial Final Decree, Final Decree, and the Settlement
Agreement;
(4) all claims against persons other than Parties to the
Settlement Agreement for damages, losses or injuries to water
rights or claims of interference with, diversion or taking of
water (including claims for injury to lands resulting from such
damages, losses, injuries, interference with, diversion, or
taking of water) within the Pojoaque Basin arising out of
activities occurring outside the Pojoaque Basin;
(5) all claims relating to activities affecting the quality
of water including any claims the Pueblos may have under the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601 et seq.) (including
claims for damages to natural resources), the Safe Drinking
Water Act (42 U.S.C. 300f et seq.), the Federal Water Pollution
Control Act (33 U.S.C. 1251 et seq.), and the regulations
implementing those laws;
(6) all claims against the United States relating to damages,
losses, or injuries to land or natural resources not due to
loss of water or water rights (including hunting, fishing,
gathering or cultural rights);
(7) all claims for water rights from water sources outside
the Pojoaque Basin for land outside the Pojoaque Basin owned by
a Pueblo or held by the United States for the benefit of any of
the Pueblos; and
(8) all rights, remedies, privileges, immunities, powers and
claims not specifically waived and released pursuant to this
Act or the Settlement Agreement.
(d) Effect of Section.--Nothing in the Settlement Agreement or this
Act--
(1) affects the ability of the United States acting in its
sovereign capacity to take actions authorized by law, including
any laws relating to health, safety, or the environment,
including the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et
seq.), the Safe Drinking Water Act (42 U.S.C. 300f et seq.),
the Federal Water Pollution Control Act (33 U.S.C. 1251 et
seq.), the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.),
and the regulations implementing those laws;
(2) affects the ability of the United States to take actions
acting in its capacity as trustee for any other Indian tribe or
allottee; or
(3) confers jurisdiction on any State court to--
(A) interpret Federal law regarding health, safety,
or the environment or determine the duties of the
United States or other parties pursuant to such Federal
law; or
(B) conduct judicial review of Federal agency action;
(e) Tolling of Claims.--
(1) In general.--Each applicable period of limitation and
time-based equitable defense relating to a claim described in
this section shall be tolled for the period beginning on the
date of enactment of this Act and ending on June 30, 2021.
(2) Effect of subparagraph.--Nothing in this subsection
revives any claim or tolls any period of limitation or time-
based equitable defense that expired before the date of
enactment of this Act.
(3) Limitation.--Nothing in this section precludes the
tolling of any period of limitations or any time-based
equitable defense under any other applicable law.
SEC. 205. EFFECT.
Nothing in this Act or the Settlement Agreement affects the land and
water rights, claims, or entitlements to water of any Indian tribe,
pueblo, or community other than the Pueblos.
PURPOSE OF THE BILL
The purpose of H.R. 3342 is to authorize the Secretary of
the Interior, acting through the Commissioner of Reclamation,
to develop water infrastructure in the Rio Grande Basin, and to
approve the settlement of the water rights claims of the
Pueblos of Nambe, Pojoaque, San Ildefonso, and Tesuque.
BACKGROUND AND NEED FOR LEGISLATION
The Aamodt water rights claims litigation (State of New
Mexico, ex rel. State Engineer v. Aamodt, No. 66 CV 6639
(D.N.M.)) was filed in 1966, making it 43 years old in 2009.
The litigation involves more than 2,500 defendants. A
comprehensive Settlement Agreement was signed by the State of
New Mexico and affected parties in May 2006. The Settlement
Agreement preserves and respects existing non-Pueblo water uses
while acknowledging that the Pueblos have a historic water
right that pre-dates non-pueblo water rights. The core of the
agreement incorporates the Pueblos' commitment to abstain from
making water priority calls against non-Pueblo users provided
that the non-Pueblo users agree to specific options outlined in
the Settlement Agreement. These commitments, by both the pueblo
and non-pueblo entities, resulted from extensive negotiations
and discussions. Independently and concurrently, the Federal
Indian Water Settlement Team negotiated the technical aspects
of the Settlement Agreement.
The Nambe, Pojoaque, San Ildefonso and Tesuque Pueblos
(``Four Pueblos'') are located in the Pojoaque River Basin
(``Basin''), a tributary of the Rio Grande in northern New
Mexico. The Basin is largely rural and agricultural, although
residential development is increasing. Sources of employment
include the Los Alamos National Laboratory, businesses in the
City of Santa Fe, and increasingly the Pueblos or their
commercial enterprises. The Pueblo of Pojoaque is the
commercial hub of the Basin and commercial development along
the major highway in the Basin is growing.
H.R. 3342 would ratify the Settlement Agreement and
authorize the Secretary of the Interior, acting through the
Bureau of Reclamation, to plan, design and construct a Regional
Water System that would divert and distribute water to the Four
Pueblos and to the Santa Fe County Water Utility. The Regional
Water System would the benefit of the County's non-pueblo and
pueblo residents. The Pueblos and Santa Fe County would jointly
operate the Regional Water System through the formation of a
Regional Water Authority. The Regional Water System would
provide 60 percent of its capacity and water to the Four
Pueblos, with the remaining 40 percent of the water and
capacity provided to and maintained by the Santa Fe County
Water Utility.
The Settlement Agreement quantifies the water rights for
the Four Pueblos, summarized in Table One, below. The
Settlement Agreement requires the United States to provide
2,500 acre-feet per year (AFY) of imported water for Pueblo use
through the System.
TABLE ONE: QUANTIFICATION SUMMARY OF PUEBLO WATER RIGHTS
----------------------------------------------------------------------------------------------------------------
Water Rights (AFY) Pojoaque Nambe San Ildefonso Tesuque
----------------------------------------------------------------------------------------------------------------
First priority rights............... 236 1,459 1,246 719
Reserved water...................... 0 302 482 0
Total........................... 1,217.25 2,267 1,757.07 1,225.25
----------------------------------------------------------------------------------------------------------------
COMMITTEE ACTION
H.R. 3342 was introduced on July 24, 2009 by Representative
Ben Ray Lujan (D-NM). The bill was referred to the Committee on
Natural Resources, and within the Committee to the Subcommittee
on Water and Power. On September 9, 2009, the Subcommittee held
a legislative hearing on the bill.
On September 30, 2009, the Subcommittee was discharged from
the further consideration of H.R. 3342 and the full Natural
Resources Committee met to consider the bill. Subcommittee
Chair Grace F. Napolitano (D-CA) offered an amendment in the
nature of a substitute that in large part responded to concerns
raised by the Department of the Interior and that addressed a
majority of the Administration's concerns, including language
limiting total construction costs. The amendment in the nature
of a substitute was adopted by voice vote. The bill, as
amended, was then ordered favorably reported to the House of
Representatives by voice vote.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title; table of contents
Section 1 provides that this Act may be cited as the
``Aamodt Litigation Settlement Act,'' and provides the table of
contents.
Section 2. Definitions
Section 2 provides definitions for terms used in the Act.
TITLE I--THE POJOAQUE BASIN REGIONAL WATER SYSTEM
Section 101. Authorization of regional water system
Subsection 101(a) authorizes the Secretary of the Interior,
acting through the Commissioner of Reclamation, to assist in
the planning, design, and construction of the Regional Water
System. Subsection 101(a) also describes the Regional Water
System components and construction requirements.
Subsection 101(b) directs the Secretary to issue a final
project design with conditions, within 90 days of completion of
the environmental compliance described in Section 106. This
final project design must be consistent with the engineering
report as defined in this Act (``Engineering Report'') and
include a description of any Pueblo Water Facilities.
Subsection 101(c) requires the Four Pueblos to consent to
any easements or rights-of-way that are necessary for the
construction of the Regional Water System at no cost to the
United States. Section 101(c)(1) also requires the State of New
Mexico (``the State'') or Santa Fe County to provide easements
or rights-of-way for the construction of the Regional Water
System at no cost to the United States. To the extent that
additional lands or interests in land are necessary for the
construction of the Regional Water System, section 101(c)(1)
requires the Secretary to acquire those lands or interests in
land. Section 101(c)(2) prohibits the Secretary from condemning
water rights for the purpose of the Regional Water System.
Subsection 101(d) lists the conditions necessary to begin
construction.
Subsection 101(e) provides that the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450 et
seq.) does not apply to the design and construction of the
Regional Water System.
Subsection 101(f) provides that expenditures by the
Secretary to construct the Pueblos Water Facilities shall not
exceed $106.4 million, indexed to October 1, 2006 dollars. The
costs of construction of the Pueblo Water Facilities shall not
be reimbursable to the United States. The subsection further
provides that the costs of constructing the Santa Fe County
Distribution System shall be at state and local expense.
Subsection 101(g) provides that state and local capital
obligations will be satisfied on payment of the state and local
capital obligations as described in the Cost Sharing and System
Integration Agreement.
Subsection 101(h) provides that, once constructed, the
Secretary will convey to each Pueblo that portion of the Pueblo
Water Facility that is located within the boundaries of that
Pueblo, and will convey to the County the County Distribution
System, once conditions are met for conveyance. This subsection
also describes the liability of the United States upon
conveyance of the facilities.
Section 102. Operating agreement
Section 102 requires the Pueblos and the County to submit
to the Secretary an executed Operating Agreement for the
Regional Water System with the contents listed in this section,
no later than 180 days after the date of completion of
environmental compliance and permitting or the date of the
issuance of a final project design. The Secretary must approve
the Operating Agreement no later than 180 days of receipt if
the Secretary determines that the Operating Agreement is
consistent with this Act and associated agreements. This
section further provides that the Operating Agreement can be
authorized in phases if the Regional Water System is
constructed in phases.
Section 103. Acquisition of Pueblo water supply for the regional water
system
Subsection 103(a) directs the Secretary to acquire water
rights to 302 acre-feet of Nambe reserved water and 1141 acre-
feet from water acquired by the County for water rights
commonly referred to as ``Top of the World'' rights in the New
Mexico v. Aamodt case. This subsection also directs the
Secretary to make available 1079 acre-feet to the Four Pueblos
pursuant to a contract entered into by the Four Pueblos and the
Secretary in accordance with section 11 of the San Juan-Chama
Project Act (P.L. 87-483), involving water rights held by the
Secretary; and by applying to the New Mexico State Engineer,
obtain approval to divert the water acquired and made available
at the points of diversion for the Regional Water System,
consistent with the Settlement Agreement and the Cost-Sharing
and System Integration Agreements.
Subsection 103(b) provides that the non-use of the water
supply secured by the Secretary for the Four Pueblos under
subsection 103(a) will not result in forfeiture, abandonment,
relinquishment, or other loss.
Subsection 103(c) directs the United States to hold the
water rights secured under subsection 103(a) in trust for the
Four Pueblos.
Subsection 103(d) provides that the water made available
pursuant to subsection 103(a)(2) must comply with the San Juan-
Chama Project Act, and provides that no preference will be
given to the Pueblos in delivery or distribution of San Juan-
Chama water or in the management or operation and maintenance
of the San Juan-Chama Project.
Subsection 103(e) lists certain terms to which the
contracted San Juan-Chama water will be subject.
Subsection 103(f) states that the San Juan-Chama water
secured for the Four Pueblos under subsection 103(a) is only to
be used for the purposes in Settlement Agreement.
Subsection 103(g) provides that compliance with subsections
103(a) through (f) shall satisfy the Secretary's obligation to
acquire and secure a water supply for the Four Pueblos,
pursuant to the Settlement Agreement.
Subsection 103(h) authorizes the Four Pueblos, Santa Fe
County, or the Regional Water Authority to acquire more water
rights, consistent with the Act and Settlement Agreement. It
further provides that nothing in this Act amends or modifies
the Pueblos' water rights as quantified in the Settlement
Agreement.
Section 104. Delivery and allocation of Regional Water System capacity
and water
Subsection 104(a) provides that the Regional Water System
shall have the capacity to divert up to 4,000 acre-feet of
consumptive use of water, as wellas water as well as the
requisite peaking capacity described in the Engineering Report
and the final project design. This subsection also allocates
sufficient capacity to convey up to 2,500 acre-feet of
consumptive use of water to the Four Pueblos and 1,500 acre-
feet of consumptive use of water capacity to convey to the
County Water Utility. Water allocated to the Pueblos and the
County under this subsection must be in accordance to this
title, the Settlement Agreement and Operating Agreement.
Subsection 104(b) directs the Regional Water Authority to
deliver 2,500 acre-feet of water from the Regional Water System
to the Four Pueblos and 1,500 acre-feet of water to the County.
Water allocated to the Pueblo and the County under this
subsection must be in accordance to this title, the Settlement
Agreement and the Operating Agreement.
Subsection 104(c) authorizes the Regional Water System to
be used to provide for the use of return flow credits to allow
for a full consumptive use of the allocated water and to convey
water allocated to one of the Pueblos or the County Utility for
the benefit of another Pueblo or the County Water Utility. This
subsection also authorizes the use of unused capacity of the
Regional Water System between the Pueblos or a Pueblo and the
County Water Utility, with conditions.
Section 105. Aamodt Settlement Pueblos' Fund
Subsection 105(a) establishes in the Treasury of the United
States the ``Aamodt Settlement Pueblos' Fund'' consisting of
funds made available under section 107(c) and any interest
earned from investment of amounts in the Fund.
Subsections 105(b) and105(c) directs the Secretary of the
Interior to manage and invest the amounts in the Fund.
Subsection 105(d) requires the Four Pueblos to submit to
the Secretary for approval a tribal management plan outlining
the proposed uses of the Fund. The Secretary of the Interior
may take judicial or administrative action to ensure that any
funds withdrawn under the approved tribal management plan are
used in accordance with this Title. This subsection also
provides that if a Pueblo or Pueblos opt to withdraw and manage
all or part of the Fund's proceeds, neither the Secretary of
the Interior nor the Secretary of the Treasury will be liable
for the withdrawal or expenditure of the amounts withdrawn.
Subsection 105(d) also requires the Four Pueblos to submit
to the Secretary for approval an expenditure plan that would
describe how portions of the Fund that are not withdrawn will
be used. The Pueblos must submit an annual report that
describes the expenditures from the Fund. Subsection 105(d)(6)
prohibits amounts in the Fund from being distributed to any
member of a Pueblo on a per capita basis. The United States is
further entitled under this subsection to set off any funds
expended or withdrawn from the amounts appropriated and with
any interest accrued if the conditions listed in section 203
are not met by September 15, 2017.
Section 106. Environmental compliance
Section 106 directs the Secretary to comply with any and
all environmental activities required by federal law including
the National Environmental Policy Act of 1969 and the
Endangered Species Act of 1973. The section further provides
that nothing in this Act affects the outcome of any analysis
conducted by the Secretary or any other federal official under
the National Environmental Policy Act of 1969.
Section 107. Authorization of appropriations
Subsection 107(a) authorizes to be appropriated to the
Secretary for the planning, design, and construction of the
Regional Water System and environmental compliance activities a
total of $106,400,000 between Fiscal Years 2010 and 2022, as
adjusted to account for increases in construction costs since
October 1, 2007 as determined using applicable engineering cost
indices. This section also establishes priorities for the use
of these authorized funds, and provides that this funding shall
not be available for construction unless the record of decision
issued by the Secretary after completion of an environmental
impact statement provides for a preferred alternative that is
in substantial compliance with the proposed Regional Water
System as defined in the Engineering Report.
Subsection 107(b) authorizes to be appropriated $5,400,000
to the Secretary for the acquisition of water rights pursuant
to section 103(a)(1(B), adjusted according to the CPI Urban
Index starting on January 1, 2011.
Subsection 107(c) authorizes to be appropriated $15,000,000
for the rehabilitation, improvement, operation, maintenance,
and replacement of the agricultural delivery facilities, waste
water systems, and other water-related infrastructure of the
applicable Pueblo; $37,500,000 to assist the Pueblos in paying
the Pueblos' share of the costs of operating, maintaining, and
replacing the Pueblo Water Facilities and the Regional Water
System; and $5,000,000 to the Pueblo of Nambe for the
acquisition of Nambe reserved water rights pursuant to section
103(a)(1)(A). This section further provides that the Secretary
is authorized to and shall pay any operation, maintenance or
replacement costs associated with the Pueblo Water Facilities
or the Regional Water System up to an amount that does not
exceed $5,000,0000, which is authorized to be appropriated to
the Secretary.
TITLE II--POJOAQUE BASIN INDIAN WATER RIGHTS SETTLEMENT
Section 201. Settlement Agreement and contract approval
Subsection 201(a) authorizes, ratifies, and confirms the
Settlement Agreement and the Cost-Sharing and System
Integration Agreement, including any amendments necessary to
make the Settlement Agreement and the Cost-Sharing and System
Integration Agreement consistent with this Act.
Subsection 201(b) directs the Secretary to execute the
Settlement Agreement and the Cost-Sharing and System
Integration Agreement, including any amendments necessary to
make the Settlement Agreement and the Cost-Sharing System
Integration Agreement consistent with this Act.
Subsection 201(c) provides the conditions under which the
Pueblos may enter into contracts to lease or exchange water or
to forbear undertaking new or expanded water uses for water
rights.
Subsection 201(d) directs the Secretary to amend the
contracts relating to the Nambe Falls Dam and Reservoir in
accordance with the Settlement Agreement.
Section 202. Environmental compliance
Section 202 provides that the Secretarial execution of the
Settlement Agreement does not constitute a ``major Federal
action'' under the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.), and directs the Secretary to comply
with any and all environmental activities required by federal
law including the National Environmental Policy Act of 1969 and
the Endangered Species Act of 1973.
Section 203. Conditions precedent and enforcement date
Subsection 203(a) provides the conditions precedent and
requires the Secretary to publish in the Federal Register a
statement of finding that the conditions have been met by
September 15, 2017, once the listed conditions are, in fact,
satisfied.
Subsections 203(b) and (f) provide that the agreement will
be no longer effective, including waivers, if the conditions
precedent listed in subsection 203(a) are not fulfilled by
September 15, 2017, with certain exceptions. Funds appropriated
under this Act but not expended will return immediately to the
general fund of the United States Treasury.
Subsection 203(c) provides that the Settlement Agreement
shall become enforceable on the date that the United States
District Court for the District of New Mexico enters a partial
final decree and an Interim Administrative Order consistent
with the Settlement Agreement.
Subsection 203(d) provides that the waivers and releases
executed pursuant to Section 204 will become effective on the
date the Secretary publishes the notice in the Federal Register
that the conditions precedent have been met.
Subsection 203(e) provides criteria to determine whether
the Regional Water System has been substantially completed, as
follows: the infrastructure is substantially complete and has
been constructed sufficiently to be capable of (A) diverting,
treating, transmitting, and distributing a supply of 2,500
acre-feet of water to the Pueblos; and (B) diverting, treating,
and transmitting the quantity of water specified in the
Engineering Report to the County Distribution System. This
subsection also establishes a process under which the Pueblos
retain the right to withdraw the waivers authorized under the
settlement and trigger nullification of the entire settlement
if the system is not substantially complete by June 30, 2021.
Under this process, the Secretary of the Interior, subject to
review under the Administrative Procedure Act, determines
whether the system is substantially complete.
Section 204. Waivers and releases
Section 204 requires the Pueblos to execute a waiver and
release of: all past, present or future claims to surface and
groundwater rights the Pueblos, or the U.S. on behalf of the
Pueblos, could have asserted in the Aamodt case; all past,
present or future claims for damages, losses, or injuries to
water rights or claims of interference with, diversion, or
taking of water for lands within the Pojoaque Basin that could
have been asserted in the Aamodt case; their defenses in the
Aamodt case to claims previously asserted by other parties in
the Aamodt case; and, all pending and future inter se
challenges against other parties to the Settlement Agreement.
Section 204 also requires the Pueblos to execute similar
waivers and releases of: (1) all causes of action against the
U.S. arising out of past, present, or future claims for water
rights that were asserted or could have been by the United
States in the Aamodt case; (2) all past, present or future
claims for damages, losses, or injuries to water, water rights,
lands or natural resources due to the loss of water and water
rights within the Pojoaque Basin that could have been asserted
by the Pueblos against the United States in the Aamodt case;
(3) all claims against the U.S. for an accounting of funds
appropriated by various Acts; and (4) all claims arising out of
the negotiation or adoption of the Settlement Agreement that
the Pueblos may have against the United States.
Section 204 further provides that notwithstanding the above
waivers and releases, the Pueblos and the United States retain
claims regarding water rights outside the Pojoaque Basin; all
claims for the enforcement of the Settlement Agreement, the
Final Decree or Act; all rights to use and protect water rights
acquired pursuant to state law to the extent not inconsistent
with the Settlement Agreement, the Partial Final Decree or the
Final Decree; and all rights, remedies, privileges, immunities,
powers, and claims not specifically waived and released
pursuant to the Settlement Agreement or this Act.
Section 204 also provides that applicable statutes of
limitation will be tolled from the date of enactment of Act and
end on the date of enforcement. It also provides that nothing
in section 204 revives any claims or tolls any period of
limitation that expired before the enactment of this Act.
Section 205. Effect
Section 205 states that nothing in this Act or the
Settlement Agreement affects any land or water rights claims or
entitlements to water of any Indian tribe, pueblo, band or
community other than the Pueblos of Nambe, Pojoaque, San
Ildefonso, and Tesuque.
COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
CONSTITUTIONAL AUTHORITY STATEMENT
Article I, section 8 of the Constitution of the United
States grants Congress the authority to enact this bill.
COMPLIANCE WITH HOUSE RULE XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
3. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to authorize the Secretary of the
Interior, acting through the Commissioner of Reclamation, to
develop water infrastructure in the Rio Grande Basin, and to
approve the settlement of the water rights claims of the
Pueblos of Nambe, Pojoaque, San Ildefonso, and Tesuque.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:
H.R. 3342--Aamodt Litigation Settlement Act
Summary: H.R. 3342 would approve and ratify a settlement
agreement between four Pueblos and the state of New Mexico. The
agreement would settle the Pueblos' claims to water rights in
the state. As part of the settlement agreement, the bill would
authorize the appropriation of funds to construct a regional
water system in the Rio Grande River Basin. The bill also would
create a trust fund for the Pueblos to maintain that system. In
addition, the bill would authorize appropriations for the
Department of the Interior (DOI) to operate and maintain
certain portions of the system until they are conveyed to the
Pueblos. Finally, the bill would authorize appropriations for
the Secretary of the Interior to acquire certain water rights
on behalf of the Pueblos.
Based on information from DOI and assuming appropriation of
the authorized and necessary amounts, CBO estimates that
implementing H.R. 3342 would cost $71 million over the 2010-
2014 period and $128 million after 2014. Enacting H.R. 3342
would not affect direct spending or revenues.
H.R. 3342 contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act (UMRA) and would impose no
costs on state, local, or tribal governments.
If the Secretary of the Interior acquires property through
eminent domain in order to construct the regional water system
under the Aamodt litigation settlement, H.R. 3342 would impose
a private-sector mandate as defined in UMRA. Based on
information from DOI, CBO expects that the Secretary would use
that authority sparingly and that the cost of the mandate, if
imposed, would fall well below the annual threshold established
in UMRA for private-sector mandates ($139 million in 2009,
adjusted annually for inflation).
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 3342 is shown in the following table.
The costs of this legislation fall within budget functions 300
(natural resources and environment) and 450 (community and
regional development).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------------
2010 2011 2012 2013 2014 2010-2014
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Regional Water System:
Estimated Authorization Level............................ 0 0 10 25 35 70
Estimated Outlays........................................ 0 0 6 18 29 53
Settlement Trust Fund:
Estimated Authorization Level............................ 0 0 3 3 4 10
Estimated Outlays........................................ 0 0 3 3 4 10
DOI Operation and Maintenance Costs:
Estimated Authorization Level............................ 0 0 1 1 1 3
Estimated Outlays........................................ 0 0 1 1 1 3
Water Rights:
Authorization Level...................................... 5 0 0 0 0 5
Estimated Outlays........................................ 2 2 1 0 0 5
Total Changes:
Estimated Authorization Level........................ 5 0 14 29 40 88
Estimated Outlays.................................... 2 2 11 22 34 71
----------------------------------------------------------------------------------------------------------------
Note: DOI = Department of the Interior.
Basis of estimate: For this estimate, CBO assumes that H.R.
3342 will be enacted early in fiscal year 2010 and that the
necessary amounts will be appropriated for each year.
Enforcement of the settlement agreement depends on the
completion of a number of actions by federal, state, local, and
tribal governments. Based on information from DOI, CBO expects
that those actions will be completed by fiscal year 2017. Cost
estimates for the authorized water projects are based on
information from DOI and on historical spending patterns for
similar activities.
In 2006, four Pueblos in New Mexico (Nambe, Pojoaque, San
Ildefonso, and Tesuque) and the city and county of Santa Fe,
New Mexico, signed a settlement agreement resolving a water
rights dispute (known as the Aamodt case) in the Rio Grande
River Basin. The United States would become party to that
agreement upon enactment of H.R. 3342, provided that certain
conditions are met. Among other actions, the Secretary of the
Interior would have to publish a statement of findings in the
Federal Register indicating that all parties have executed the
agreement; the U.S. district court would have to issue a
judgment and final decree concerning the agreement; Congress
would have to appropriate certain amounts specified in the bill
(about $68 million) to carry out part of the agreement; and New
Mexico would have to appropriate funds for the Pueblos.
Based on information from DOI and assuming appropriation of
the necessary amounts, CBO estimates that implementing the
legislation would cost $71 million over the 2010-2014 period
and $128 million after 2014. Should the Secretary not publish
the required statement of findings by September 15, 2017,
verifying that all conditions necessary to execute the
agreement have been met, the agreement would not take effect,
and no federal funds could be spent after that date.
Regional water system
Section 101 would authorize the Secretary of the Interior,
acting through the Commissioner of Reclamation, to construct a
regional water system in the Rio Grande River Basin in New
Mexico. The system would divert water from the Rio Grande River
to certain Pueblos and to the Santa Fe County Water Utility.
The state of New Mexico and Santa Fe County would be required
to pay a portion of the system's cost. Once construction of
that system is complete, the Secretary would be required to
convey components of the system to state, local, and tribal
entities. Assuming appropriation of the necessary amounts, CBO
estimates that constructing the water system would cost $53
million over the 2010-2014 period and an additional $75 million
after 2014.
Settlement Trust Fund
Section 105 would authorize the appropriation of $57.5
million to be deposited into the Aamodt Settlement Pueblos'
Fund. A portion of that amount would be adjusted for increases
in construction costs. Once certain conditions have been met,
the Secretary of the Interior would be required to invest
amounts in the fund in U.S. Treasury obligations. The fund
would be used by the Pueblos to operate and maintain certain
portions of the regional water system owned by the Pueblos.
Amounts in the fund could not be spent by the Pueblos until
certain conditions specified in the bill are met. About 35
percent of the funds would be available for expenditure after
the United States District Court approves the settlement
agreement, which we expect would occur in 2012. Those funds
would be used by the Pueblos to acquire certain water rights
and to operate and maintain certain water systems. CBO expects
that the Pueblos would spend between $3 million and $5 million
a year over the 2012-2016 period for those purposes.
The remaining 65 percent of the funds could be spent when
the Secretary determines that certain portions of the new
regional water system are substantially complete. Information
from DOI suggests that the system would be substantially
complete by the end of 2017. At that time, we expect that the
settlement agreement would be executed, the remaining funds
would be available to the Pueblos, and the budget would record
an expenditure of $42 million. In total, CBO estimates that
implementing this provision would cost $10 million over the
2010-2014 period and $51 million after 2014.
Payments to certain tribal trust funds that are held and
managed in a fiduciary capacity by the federal government on
behalf of Indian tribes are treated as payments to a nonfederal
entity. As a result, CBO expects that the entire amount
deposited into the Aamodt Settlement Pueblos' Fund (excluding
amounts made available for certain Pueblo water systems) would
be recorded as an outlay in 2017 when the funds could be spent
by the Pueblos. Subsequently, any use of such funds would have
no effect on the federal budget. Because H.R. 3342 directs the
Secretary to invest amounts in the fund only after those
amounts are available to the Pueblos, CBO expects that no
interest would accrue on the amounts in the fund until 2017
when federal payments could first be spent by the Pueblos.
DOI operation and maintenance costs
Section 107 would authorize the appropriation of $5 million
for DOI to pay operation and maintenance costs associated with
certain portions of the regional water system prior to their
conveyance to the Pueblos. Based on information from DOI, CBO
expects that land and infrastructure associated with those
projects would be conveyed to the Pueblos in 2017. Assuming
appropriation of the authorized amounts, CBO estimates that
operating and maintaining those projects would cost about $1
million a year over the 2012-2016 period.
Water rights
Section 103 would authorize the appropriation of $5.4
million for the acquisition of water rights pursuant to the
settlement agreement. Those funds would be used by the
Secretary of the Interior to acquire, on behalf of the Pueblos,
a specified amount of water from Santa Fe County. Assuming
appropriation of the authorized amounts, CBO estimates that
acquiring those water rights would cost $5.4 million over the
2010-2012 period.
Estimated impact on state, local, and tribal governments:
H.R. 3342 contains no intergovernmental mandates as defined in
UMRA. The bill would authorize water projects and provide other
assistance that would benefit state, local, and tribal
governments. Any costs to those governments would be incurred
voluntarily as a condition of federal assistance.
Estimated impact on the private sector: If the Secretary of
the Interior acquires property through eminent domain in order
to construct the regional water system under the proposed
settlement, the bill would impose a private-sector mandate as
defined in UMRA. The cost of the mandate would be the fair
market value of the property and any expenses incurred by the
owners in transferring that property to the federal government.
Based on information from the DOI, CBO expects that only a few
small tracts of private land may need to be acquired and that
the value of that land is small. CBO therefore expects that the
cost of the mandate, if imposed, would fall well below the
annual threshold established in UMRA for private-sector
mandates ($139 million in 2009, adjusted annually for
inflation).
Previous CBO estimate: On October 13, 2009, CBO transmitted
a cost estimate for S. 1105, the Aamodt Litigation Settlement
Act, as ordered reported by the Senate Committee on Indian
Affairs on September 10, 2009. The House and Senate versions of
the legislation are similar, and our cost estimates are the
same.
Estimate prepared by: Federal Costs: Jeff LaFave; Impact on
State, Local, and Tribal Governments: Melissa Merrell; Impact
on the Private Sector: Amy Petz.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
COMPLIANCE WITH PUBLIC LAW 104-4
This bill contains no unfunded mandates.
EARMARK STATEMENT
H.R. 3342 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
This bill is not intended to preempt any State, local or
tribal law.
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes in existing
law.
ADDITIONAL VIEWS
The Aamodt Litigation Settlement Act (H.R. 3342) would
quantify the Indian water rights of the Pueblos of Nambe,
Pojoaque, San Ildefonso, and Tesuque (``Four Pueblos'') and end
43 years of Federal litigation involving over 2,500 defendants
(State of New Mexico, ex rel. State Engineer v. Aamodt). The
Settlement will also bring long-term certainty and stability to
Pueblo and non-Pueblo water users in the Pojoaque Basin.
H.R. 3342 would ratify the comprehensive settlement
agreement and related cost-sharing agreements, entered into by
the State of New Mexico, the Four Pueblos, other local
governments, and individual water users dated May 2006. The
settlement agreement evolved out of the efforts of the Federal
Indian Water Settlement Negotiations Team, which included the
Department of the Interior and the Department of Justice.
Similar to the Taos Pueblo Settlement Act, H.R. 3342
reflects significant work, time and diligent efforts by the
Four Pueblos and their local, state and Federal partners. This
settlement agreement is consistent with the Administration's
views of supporting negotiations as an inherent responsibility
as Federal trustee to Indian tribes and their members.
Included with these views is a November 4, 2009, letter
submitted by the Northern Pueblos Tributary Association
(``Association'') in response to the October 22, 2009, letter
to the Subcommittee on Water and Power by Commissioner Michael
L. Connor regarding H.R. 3342.
Responding to the Commissioner's concern that unanticipated
cost increases and the legislation's budget authorization, the
Association stated that the cost-sharing agreement should be
executed as a condition of beginning construction--a
requirement already included in H.R. 3342 at section 101(d)(1).
The Commissioner also suggested that Bureau of Reclamation
be required to consult with the Four Pueblos and the other non-
Federal parties, a requirement the Association and the
Committee believe is already incumbent on the Bureau. Further,
as the Association points out, this consultation will present
the best opportunity to discuss any change in the allocation of
cost overruns which may arise.
The Association agreed to language changes proposed by the
Commissioner as regards access to San Juan Chama project water
to fulfill the terms of the settlement by inserting the word
``construction'' before the word ``cost'' in Section
103(e)(1(C), as well as a clarification of the Secretary's
authorization to pay operation, maintenance, and replacement
costs for the regional water systems in Section 107(c).
In summary, the Aamodt Litigation Settlement Act resolves
long-standing water-related claims by the Four Pueblos, reduces
the Federal government's probable legal exposure regarding
Federally-reserved water rights, and saves the American
taxpayer significant financial resources compared to the
probable cost to the United States were the Four Pueblos Indian
water rights claims brought to trial. In settling these water
rights claims, the non-Pueblo residents in the Pojoaque Basin
will acquire a stable source of water for the foreseeable
future and a water distribution system. This settlement will
result in quantifying water rights, protecting water rights,
and as a result, providing water certainty in northern New
Mexico.
Enclosure (1).
Grace F. Napolitano.
Martin Heinrich.
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ADDITIONAL VIEWS OF
THE HONORABLE TOM McCLINTOCK
On September 30, 2009, the Full Natural Resources Committee
marked up H.R. 3342, the Aamodt Litigation Settlement Act. This
bill, sponsored by Congressman Ben Ray Lujan (D-NM), authorizes
the Secretary of the Interior to approve the settlement of
water rights claims of five Pueblo Indian Tribes located in the
Pojoaque River Basin, New Mexico.
This bill rightly attempts to resolve longstanding Indian
water rights claims, but Congress lacks sufficient information
to assess whether the $199 million authorized in this
legislation is appropriate. Therefore, as Ranking Republican of
the House Water and Power Subcommittee, I have serious fiscal
concerns with this well-intended bill.
Another area of concern I have is that this legislation
does not have support from all non-Indian water users. The
Pojoaque Basin Water Alliance has raised some very serious
concerns regarding the protection of private property rights
and the proper governing structure set forth in the
legislation. While some of these concerns were raised during a
legislative hearing held on H.R. 3342, it is still important to
acknowledge that support for H.R. 3342 is not unanimous.
It is important that Congress play a role in settling
Indian water rights claims, some of which comprise the oldest
standing litigation in the federal court system. Settling legal
claims not only resolves litigation but also can help establish
water supply certainty for water users on and off-reservations.
However, Congress still must answer key questions when it
considers these and other settlements and should not be just a
rubber stamp. For example, one of the most important questions
involving a settlement--especially when American taxpayer
dollars will be used--is whether resolving the litigation will
be advantageous to the federal government compared to its
liability under current law. That question has not been
answered for H.R. 3342.
If Congress were the board of directors of a private
corporation deciding whether to approve a negotiated legal
settlement, we would be guilty of breaching our fiduciary
responsibility to stockholders if we made that decision without
consulting legal counsel regarding the company's financial
exposure in litigation should the settlement not be accepted.
Since this question remains unanswered, Congress is forced
to be the arbitrator between sides involved in the litigation.
This is a role Congress should not be forced to assume without
sufficient information. Given the astounding fact that the
current Administration has expressed general fiscal and other
reservations about this bill, Congress should ask for and
deserves answers. As part of this, Department of the Interior
was asked for its views on the bill as passed by the Natural
Resources Committee. The Department's response to Congress,
which is attached, clearly indicates there are numerous issues
that still need to be resolved.
I also sent a letter on September 25, 2009, to the
Department of Justice asking for opinions on this legislation.
The letter specifically asks the Attorney General to provide
his view on the ``likelihood that the recipients of water
rights and funds transferred by these settlements would prevail
on the merits of their claims and whether these settlement
amounts represent a net benefit to the taxpayers as compared to
the consequences and costs of litigation.'' To date, I have not
received a response to this letter, and I fundamentally believe
that Congress needs this and other answers before moving
forward with spending nearly 200 million American taxpayer
dollars.
My request is based on precedent. In an appearance before
the Natural Resources Committee on legislation resolving
Colville Indian claims, a Clinton Administration Justice
Department official testified in 1994, ``[T]he Federal
government is not that well postured for a victory on this
claim which has been pending for over 40 years. Absent the
settlement, we could well litigate it for another ten years and
the outcome could easily be a significant cost to the taxpayers
and the public.'' This testimony was very helpful in moving
that legislation forward. According to the Congressional
Research Service, Justice Department officials have testified
about additional settlements pending before Congress, so there
is no reason why this Congress should act without similar
information on this bill.
Without these transparent answers and the amount of
taxpayer fuding in this bill--estimated by the Congressional
Budget Office as $71 million in 2010-2014 and $128 million
after 2014--I have serious concerns with the way this Congress
and the Obama Administration are moving forward on H.R. 3342,
and on Indian water rights settlement bills in general.
Tom McClintock.
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