[House Report 111-395]
[From the U.S. Government Publishing Office]


111th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     111-395
======================================================================
 
             TAOS PUEBLO INDIAN WATER RIGHTS 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. 3254]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 3254) to approve the Taos Pueblo Indian Water 
Rights Settlement Agreement, and for other purposes, 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 ``Taos Pueblo Indian 
Water Rights 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. Purpose.
Sec. 3. Definitions.
Sec. 4. Pueblo rights.
Sec. 5. Pueblo water infrastructure and watershed enhancement.
Sec. 6. Taos Pueblo Water Development Fund.
Sec. 7. Marketing.
Sec. 8. Mutual-Benefit Projects.
Sec. 9. San Juan-Chama Project contracts.
Sec. 10. Authorizations, ratifications, confirmations, and conditions 
precedent.
Sec. 11. Waivers and releases.
Sec. 12. Interpretation and enforcement.
Sec. 13. Disclaimer.

SEC. 2. PURPOSE.

  The purposes of this Act are--
          (1) to approve, ratify, and confirm the Taos Pueblo Indian 
        Water Rights Settlement Agreement;
          (2) to authorize and direct the Secretary to execute the 
        Settlement Agreement and to perform all obligations of the 
        Secretary under the Settlement Agreement and this Act; and
          (3) to authorize all actions and appropriations necessary for 
        the United States to meet its obligations under the Settlement 
        Agreement and this Act.

SEC. 3. DEFINITIONS.

  In this Act:
          (1) Eligible non-pueblo entities.--The term ``Eligible Non-
        Pueblo Entities'' means the Town of Taos, El Prado Water and 
        Sanitation District (``EPWSD''), and the New Mexico Department 
        of Finance and Administration Local Government Division on 
        behalf of the Acequia Madre del Rio Lucero y del Arroyo Seco, 
        the Acequia Madre del Prado, the Acequia del Monte, the Acequia 
        Madre del Rio Chiquito, the Upper Ranchitos Mutual Domestic 
        Water Consumers Association, the Upper Arroyo Hondo Mutual 
        Domestic Water Consumers Association, and the Llano Quemado 
        Mutual Domestic Water Consumers Association.
          (2) Enforcement date.--The term ``Enforcement Date'' means 
        the date upon which the Secretary publishes the notice required 
        by section 10(f)(1).
          (3) Mutual-benefit projects.--The term ``Mutual-Benefit 
        Projects'' means the projects described and identified in 
        articles 6 and 10.1 of the Settlement Agreement.
          (4) Partial final decree.--The term ``Partial Final Decree'' 
        means the Decree entered in New Mexico v. Abeyta and New Mexico 
        v. Arellano, Civil Nos. 7896-BB (U.S.6 D.N.M.) and 7939-BB 
        (U.S. D.N.M) (consolidated), for the resolution of the Pueblo's 
        water right claims and which is substantially in the form 
        agreed to by the Parties and attached to the Settlement 
        Agreement as Attachment 5.
          (5) Parties.--The term ``Parties'' means the Parties to the 
        Settlement Agreement, as identified in article 1 of the 
        Settlement Agreement.
          (6) Pueblo.--The term ``Pueblo'' means the Taos Pueblo, a 
        sovereign Indian tribe duly recognized by the United States of 
        America.
          (7) Pueblo lands.--The term ``Pueblo lands'' means those 
        lands located within the Taos Valley to which the Pueblo, or 
        the United States in its capacity as trustee for the Pueblo, 
        holds title subject to Federal law limitations on alienation. 
        Such lands include Tracts A, B, and C, the Pueblo's land grant, 
        the Blue Lake Wilderness Area, and the Tenorio and Karavas 
        Tracts and are generally depicted in Attachment 2 to the 
        Settlement Agreement.
          (8) 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).
          (9) Secretary.--The term ``Secretary'' means the Secretary of 
        the Interior.
          (10) Settlement agreement.--The term ``Settlement Agreement'' 
        means the contract dated March 31, 2006, between and among--
                  (A) the United States, acting solely in its capacity 
                as trustee for Taos Pueblo;
                  (B) the Taos Pueblo, on its own behalf;
                  (C) the State of New Mexico;
                  (D) the Taos Valley Acequia Association and its 55 
                member ditches (``TVAA'');
                  (E) the Town of Taos;
                  (F) EPWSD; and
                  (G) the 12 Taos area Mutual Domestic Water Consumers 
                Associations (``MDWCAs''), as amended to conform with 
                this Act.
          (11) State engineer.--The term ``State Engineer'' means the 
        New Mexico State Engineer.
          (12) Taos valley.--The term ``Taos Valley'' means the 
        geographic area depicted in Attachment 4 of the Settlement 
        Agreement.

SEC. 4. PUEBLO RIGHTS.

  (a) In General.--Those rights to which the Pueblo is entitled under 
the Partial Final Decree shall be held in trust by the United States on 
behalf of the Pueblo and shall not be subject to forfeiture, 
abandonment, or permanent alienation.
  (b) Subsequent Act of Congress.--The Pueblo shall not be denied all 
or any part of its rights held in trust absent its consent unless such 
rights are explicitly abrogated by an Act of Congress hereafter 
enacted.

SEC. 5. PUEBLO WATER INFRASTRUCTURE AND WATERSHED ENHANCEMENT.

  (a) In General.--The Secretary, acting through the Commissioner of 
Reclamation, shall provide grants and technical assistance to the 
Pueblo on a nonreimbursable basis to--
          (1) plan, permit, design, engineer, construct, reconstruct, 
        replace, or rehabilitate water production, treatment, and 
        delivery infrastructure;
          (2) restore, preserve, and protect the environment associated 
        with the Buffalo Pasture area; and
          (3) protect and enhance watershed conditions.
  (b) Availability of Grants.--Upon the Enforcement Date, all amounts 
appropriated pursuant to section 10(c)(1) or made available from other 
authorized sources, shall be available in grants to the Pueblo after 
the requirements of subsection (c) have been met.
  (c) Plan.--The Secretary shall provide financial assistance pursuant 
to subsection (a) upon the Pueblo's submittal of a plan that identifies 
the projects to be implemented consistent with the purposes of this 
section and describes how such projects are consistent with the 
Settlement Agreement.
  (d) Early Funds.--Notwithstanding subsection (b), $10,000,000 of the 
monies authorized to be appropriated pursuant to section 10(c)(1)--
          (1) shall be made available in grants to the Pueblo by the 
        Secretary upon appropriation or availability of the funds from 
        other authorized sources; and
          (2) shall be distributed by the Secretary to the Pueblo on 
        receipt by the Secretary from the Pueblo of a written notice, a 
        Tribal Council resolution that describes the purposes under 
        subsection (a) for which the monies will be used, and a plan 
        under subsection (c) for this portion of the funding.

SEC. 6. TAOS PUEBLO WATER DEVELOPMENT FUND.

  (a) Establishment.--There is established in the Treasury of the 
United States a fund to be known as the ``Taos Pueblo Water Development 
Fund'' (hereinafter, ``Fund'') to be used to pay or reimburse costs 
incurred by the Pueblo for--
          (1) acquiring water rights;
          (2) planning, permitting, designing, engineering, 
        constructing, reconstructing, replacing, rehabilitating, 
        operating, or repairing water production, treatment or delivery 
        infrastructure, on-farm improvements, or wastewater 
        infrastructure;
          (3) restoring, preserving and protecting the Buffalo Pasture, 
        including planning, permitting, designing, engineering, 
        constructing, operating, managing and replacing the Buffalo 
        Pasture Recharge Project;
          (4) administering the Pueblo's water rights acquisition 
        program and water management and administration system; and
          (5) for watershed protection and enhancement, support of 
        agriculture, water-related Pueblo community welfare and 
        economic development, and costs related to the negotiation, 
        authorization, and implementation of the Settlement Agreement.
  (b) Management of the Fund.--The Secretary shall manage the Fund, 
invest amounts in the Fund, and make monies available from the Fund for 
distribution to the Pueblo consistent with the American Indian Trust 
Fund Management Reform Act of 1994 (25 U.S.C. 4001, et seq.) 
(hereinafter, ``Trust Fund Reform Act''), this Act, and the Settlement 
Agreement.
  (c) Investment of the Fund.--Upon the Enforcement Date, the Secretary 
shall invest amounts in the Fund in accordance with--
          (1) the Act of April 1, 1880 (21 Stat. 70, ch. 41, 25 U.S.C. 
        161);
          (2) the first section of the Act of June 24, 1938 (52 Stat. 
        1037, ch. 648, 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) Availability of Amounts From the Fund.--Upon the Enforcement 
Date, all monies deposited in the Fund pursuant to section 10(c)(2) or 
made available from other authorized sources shall be available to the 
Pueblo for expenditure or withdrawal after the requirements of 
subsection (e) have been met.
  (e) Expenditures and Withdrawal.--
          (1) Tribal management plan.--
                  (A) In general.--The Pueblo may withdraw all or part 
                of the Fund on approval by the Secretary of a tribal 
                management plan as described in the Trust Fund Reform 
                Act.
                  (B) Requirements.--In addition to the requirements 
                under the Trust Fund Reform Act, the tribal management 
                plan shall require that the Pueblo spend any funds in 
                accordance with the purposes described in subsection 
                (a).
          (2) Enforcement.--The Secretary may take judicial or 
        administrative action to enforce the requirement that monies 
        withdrawn from the Fund are used for the purposes specified in 
        subsection (a).
          (3) Liability.--If the Pueblo exercises the right to withdraw 
        monies from the Fund, neither the Secretary nor the Secretary 
        of the Treasury shall retain any liability for the expenditure 
        or investment of the monies withdrawn.
          (4) Expenditure plan.--
                  (A) In general.--The Pueblo shall submit to the 
                Secretary for approval an expenditure plan for any 
                portions of the funds made available under this Act 
                that the Pueblo does not withdraw under paragraph 
                (1)(A).
                  (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.
          (5) Annual report.--The Pueblo shall submit to the Secretary 
        an annual report that describes all expenditures from the Fund 
        during the year covered by the report.
  (f) Funds Available Upon Appropriation.--Notwithstanding subsection 
(d), $15,000,000 of the monies authorized to be appropriated pursuant 
to section 10(c)(2)--
          (1) shall be available upon appropriation or made available 
        from other authorized sources for the Pueblo's acquisition of 
        water rights pursuant to Article 5.1.1.2.3 of the Settlement 
        Agreement, the Buffalo Pasture Recharge Project, implementation 
        of the Pueblo's water rights acquisition program and water 
        management and administration system, the design, planning, and 
        permitting of water or wastewater infrastructure eligible for 
        funding under sections 5 or 6, or costs related to the 
        negotiation, authorization, and implementation of the 
        Settlement Agreement; and
          (2) shall be distributed by the Secretary to the Pueblo on 
        receipt by the Secretary from the Pueblo of a written notice 
        and a Tribal Council resolution that describes the purposes 
        under paragraph (1) for which the monies will be used.
  (g) No Per Capita Distributions.--No part of the Fund shall be 
distributed on a per capita basis to members of the Pueblo.

SEC. 7. MARKETING.

  (a) Pueblo Water Rights.--Subject to the approval of the Secretary in 
accordance with subsection (e), the Pueblo may market water rights 
secured to it under the Settlement Agreement and Partial Final Decree, 
provided that such marketing is in accordance with this section.
  (b) Pueblo Contract Rights to San Juan-chama Project Water.--Subject 
to the approval of the Secretary in accordance with subsection (e), the 
Pueblo may subcontract water made available to the Pueblo under the 
contract authorized under section 9(b)(1)(A) to third parties to supply 
water for use within or without the Taos Valley, provided that the 
delivery obligations under such subcontract are not inconsistent with 
the Secretary's existing San Juan-Chama Project obligations and such 
subcontract is in accordance with this section.
  (c) Limitation.--
          (1) In general.--Diversion or use of water off Pueblo lands 
        pursuant to Pueblo water rights or Pueblo contract rights to 
        San Juan-Chama Project water shall be subject to and not 
        inconsistent with the same requirements and conditions of State 
        law, any applicable Federal law, and any applicable interstate 
        compact as apply to the exercise of water rights or contract 
        rights to San Juan-Chama Project water held by non-Federal, 
        non-Indian entities, including all applicable State Engineer 
        permitting and reporting requirements.
          (2) Effect on water rights.--Such diversion or use off Pueblo 
        lands under paragraph (1) shall not impair water rights or 
        increase surface water depletions within the Taos Valley.
  (d) Maximum Term.--
          (1) In general.--The maximum term of any water use lease or 
        subcontract, including all renewals, shall not exceed 99 years 
        in duration.
          (2) Alienation of rights.--The Pueblo shall not permanently 
        alienate any rights it has under the Settlement Agreement, the 
        Partial Final Decree, and this Act.
  (e) Approval of Secretary.--The Secretary shall approve or disapprove 
any lease or subcontract submitted by the Pueblo for approval not later 
than--
          (1) 180 days after submission; or
          (2) 60 days after compliance, if required, with section 
        102(2)(C) of the National Environmental Policy Act of 1969 (42 
        U.S.C. 4332(2)(C)), or any other requirement of Federal law, 
        whichever is later, provided that no Secretarial approval shall 
        be required for any water use lease with a term of less than 7 
        years.
  (f) No Forfeiture or Abandonment.--The nonuse by a lessee or 
subcontractor of the Pueblo of any right to which the Pueblo is 
entitled under the Partial Final Decree shall in no event result in a 
forfeiture, abandonment, relinquishment, or other loss of all or any 
part of those rights.
  (g) No Preemption.--
          (1) In general.--The approval authority of the Secretary 
        provided under subsection (e) shall not amend, construe, 
        supersede, or preempt any State or Federal law, interstate 
        compact, or international treaty that pertains to the Colorado 
        River, the Rio Grande, or any of their tributaries, including 
        the appropriation, use, development, storage, regulation, 
        allocation, conservation, exportation, or quantity of those 
        waters.
          (2) Applicable law.--The provisions of section 2116 of the 
        Revised Statutes (25 U.S.C. 177) shall not apply to any water 
        made available under the Settlement Agreement.
  (h) No Prejudice.--Nothing in this Act shall be construed to 
establish, address, prejudice, or prevent any party from litigating 
whether or to what extent any applicable State law, Federal law, or 
interstate compact does or does not permit, govern, or apply to the use 
of the Pueblo's water outside of New Mexico.

SEC. 8. MUTUAL-BENEFIT PROJECTS.

  (a) In General.--Upon the Enforcement Date, the Secretary, acting 
through the Commissioner of Reclamation, shall provide financial 
assistance in the form of grants on a nonreimbursable basis to Eligible 
Non-Pueblo Entities to plan, permit, design, engineer, and construct 
the Mutual-Benefit Projects in accordance with the Settlement 
Agreement--
          (1) to minimize adverse impacts on the Pueblo's water 
        resources by moving future non-Indian ground water pumping away 
        from the Pueblo's Buffalo Pasture; and
          (2) to implement the resolution of a dispute over the 
        allocation of certain surface water flows between the Pueblo 
        and non-Indian irrigation water right owners in the community 
        of Arroyo Seco Arriba.
  (b) Cost-sharing.--
          (1) Federal share.--The Federal share of the total cost of 
        planning, designing, and constructing the Mutual-Benefit 
        Projects authorized in subsection (a) shall be 75 percent and 
        shall be nonreimbursable.
          (2) Non-federal share.--The non-Federal share of the total 
        cost of planning, designing, and constructing the Mutual-
        Benefit Projects shall be 25 percent and may be in the form of 
        in-kind contributions, including the contribution of any 
        valuable asset or service that the Secretary determines would 
        substantially contribute to completing the Mutual-Benefit 
        Projects.

SEC. 9. SAN JUAN-CHAMA PROJECT CONTRACTS.

  (a) In General.--Contracts issued under this section shall be in 
accordance with this Act and the Settlement Agreement.
  (b) Contracts for San Juan-chama Project Water.--
          (1) In general.--The Secretary shall enter into 3 repayment 
        contracts by not later than 180 days after the date of 
        enactment of this Act, for the delivery of San Juan-Chama 
        Project water in the following amounts:
                  (A) 2,215 acre-feet/annum to the Pueblo.
                  (B) 366 acre-feet/annum to the Town of Taos.
                  (C) 40 acre-feet/annum to EPWSD.
          (2) Requirements.--Each such contract shall provide that if 
        the conditions precedent set forth in section 10(f)(2) have not 
        been fulfilled by December 31, 2016, the contract shall expire 
        on that date.
          (3) Applicable law.--Public Law 87-483 (76 Stat. 97) applies 
        to the contracts entered into under paragraph (1) and no 
        preference shall be applied as a result of section 4(a) with 
        regard to the delivery or distribution of San Juan-Chama 
        Project water or the management or operation of the San Juan-
        Chama Project.
  (c) Waiver.--With respect to the contract authorized and required by 
subsection (b)(1)(A) and notwithstanding the provisions of Public Law 
87-483 (76 Stat. 96) or any other provision of law--
          (1) the Secretary shall waive the entirety of the Pueblo's 
        share of the construction costs, both principal and the 
        interest, for the San Juan-Chama Project and pursuant to that 
        waiver, the Pueblo's share of all construction costs for the 
        San Juan-Chama Project, inclusive of both principal and 
        interest shall be nonreimbursable; and
          (2) the Secretary's waiver of the 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.

SEC. 10. AUTHORIZATIONS, RATIFICATIONS, CONFIRMATIONS, AND CONDITIONS 
                    PRECEDENT.

  (a) Ratification.--
          (1) In general.--Except to the extent that any provision of 
        the Settlement Agreement conflicts with any provision of this 
        Act, the Settlement Agreement is authorized, ratified, and 
        confirmed.
          (2) Amendments.--To the extent amendments are executed to 
        make the Settlement Agreement consistent with this Act, such 
        amendments are also authorized, ratified, and confirmed.
  (b) Execution of Settlement Agreement.--To the extent that the 
Settlement Agreement does not conflict with this Act, the Secretary 
shall execute the Settlement Agreement, including all exhibits to the 
Settlement Agreement requiring the signature of the Secretary and any 
amendments necessary to make the Settlement Agreement consistent with 
this Act, after the Pueblo has executed the Settlement Agreement and 
any such amendments.
  (c) Authorization of Appropriations.--
          (1) Taos pueblo infrastructure and watershed fund.--There is 
        authorized to be appropriated to the Secretary to provide 
        grants pursuant to section 5, $30,000,000, as adjusted under 
        paragraph (4), for the period of fiscal years 2010 through 
        2016.
          (2) Taos pueblo water development fund.--There is authorized 
        to be appropriated to the Taos Pueblo Water Development Fund, 
        established at section 6(a), $58,000,000, as adjusted under 
        paragraph (4), for the period of fiscal years 2010 through 
        2016.
          (3) Mutual-benefit projects funding.--There is further 
        authorized to be appropriated to the Secretary to provide 
        grants pursuant to section 8, a total of $33,000,000, as 
        adjusted under paragraph (4), for the period of fiscal years 
        2010 through 2016.
          (4) Adjustments to amounts authorized.--The amounts 
        authorized to be appropriated under paragraphs (1) through (3) 
        shall be adjusted by such amounts as may be required by reason 
        of changes since April 1, 2007, in construction costs, as 
        indicated by engineering cost indices applicable to the types 
        of construction or rehabilitation involved.
          (5) Deposit in fund.--Except for the funds to be provided to 
        the Pueblo pursuant to section 5(d), the Secretary shall 
        deposit the funds made available pursuant to paragraphs (1) and 
        (3) into a Taos Settlement Fund to be established within the 
        Treasury of the United States so that such funds may be made 
        available to the Pueblo and the Eligible Non-Pueblo Entities 
        upon the Enforcement Date as set forth in sections 5(b) and 
        8(a).
  (d) Authority of the Secretary.--The Secretary is authorized to enter 
into such agreements and to take such measures as the Secretary may 
deem necessary or appropriate to fulfill the intent of the Settlement 
Agreement and this Act.
  (e) Environmental Compliance.--
          (1) Effect of execution of settlement agreement.--The 
        Secretary's execution of the Settlement Agreement shall not 
        constitute a major Federal action under the National 
        Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
          (2) 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--
                  (A) the National Environmental Policy Act of 1969 (42 
                U.S.C. 4321 et seq.); and
                  (B) the Endangered Species Act of 1973 (16 U.S.C. 
                1531 et seq.).
  (f) Conditions Precedent and Secretarial Finding.--
          (1) In general.--Upon the fulfillment of the conditions 
        precedent described in paragraph (2), the Secretary shall 
        publish in the Federal Register a statement of finding that the 
        conditions have been fulfilled.
          (2) Conditions.--The conditions precedent referred to in 
        paragraph (1) are the following:
                  (A) The President has signed into law the Taos Pueblo 
                Indian Water Rights Settlement Act.
                  (B) To the extent that the Settlement Agreement 
                conflicts with this Act, the Settlement Agreement has 
                been revised to conform with this Act.
                  (C) The Settlement Agreement, so revised, including 
                waivers and releases pursuant to section 11, has been 
                executed by the Parties and the Secretary prior to the 
                Parties' motion for entry of the Partial Final Decree.
                  (D) Congress has fully appropriated or the Secretary 
                has provided from other authorized sources all funds 
                authorized by paragraphs (1) through (3) of subsection 
                (c) so that the entire amounts so authorized have been 
                previously provided to the Pueblo pursuant to sections 
                5 and 6, or placed in the Taos Pueblo Water Development 
                Fund or the Taos Settlement Fund as directed in 
                subsection (c).
                  (E) The Legislature of the State of New Mexico has 
                fully appropriated the funds for the State 
                contributions as specified in the Settlement Agreement, 
                and those funds have been deposited in appropriate 
                accounts.
                  (F) The State of New Mexico has enacted legislation 
                that amends NMSA 1978, section 72-6-3 to state that a 
                water use due under a water right secured to the Pueblo 
                under the Settlement Agreement or the Partial Final 
                Decree may be leased for a term, including all 
                renewals, not to exceed 99 years, provided that this 
                condition shall not be construed to require that said 
                amendment state that any State law based water rights 
                acquired by the Pueblo or by the United States on 
                behalf of the Pueblo may be leased for said term.
                  (G) A Partial Final Decree that sets forth the water 
                rights and contract rights to water to which the Pueblo 
                is entitled under the Settlement Agreement and this Act 
                and that substantially conforms to the Settlement 
                Agreement and Attachment 5 thereto has been approved by 
                the Court and has become final and nonappealable.
  (g) Enforcement Date.--The Settlement Agreement shall become 
enforceable, and the waivers and releases executed pursuant to section 
11 and the limited waiver of sovereign immunity set forth in section 
12(a) shall become effective, as of the date that the Secretary 
publishes the notice required by subsection (f)(1).
  (h) Expiration Date.--
          (1) In general.--If all of the conditions precedent described 
        in section (f)(2) have not been fulfilled by December 31, 2016, 
        the Settlement Agreement shall be null and void, the waivers 
        and releases executed pursuant to section 11 and the sovereign 
        immunity waivers in section 12(a) shall not become effective, 
        and any unexpended Federal funds, together with any income 
        earned thereon, 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 
        Parties in writing and approved by Congress.
          (2) Exception.--Notwithstanding subsection (h)(1) or any 
        other provision of law, any unexpended Federal funds, together 
        with any income earned thereon, made available under sections 
        5(d) and 6(f) and title to any property acquired or constructed 
        with expended Federal funds made available under sections 5(d) 
        and 6(f) shall be retained by the Pueblo.
          (3) Right to set-off.--In the event the conditions precedent 
        set forth in subsection (f)(2) have not been fulfilled by 
        December 31, 2016, the United States shall be entitled to set 
        off any funds expended or withdrawn from the amount 
        appropriated pursuant to paragraphs (1) and (2) of subsection 
        (c) or made available from other authorized sources, together 
        with any interest accrued, against any claims asserted by the 
        Pueblo against the United States relating to water rights in 
        the Taos Valley.

SEC. 11. WAIVERS AND RELEASES.

  (a) Claims by the Pueblo and the United States.--In return for 
recognition of the Pueblo's water rights and other benefits, including 
but not limited to the commitments by non-Pueblo parties, as set forth 
in the Settlement Agreement and this Act, the Pueblo, on behalf of 
itself and its members, and the United States acting in its capacity as 
trustee for the Pueblo are authorized to execute a waiver and release 
of claims against the parties to New Mexico v. Abeyta and New Mexico v. 
Arellano, Civil Nos. 7896-BB (U.S.6 D.N.M.) and 7939-BB (U.S. D.N.M.) 
(consolidated) from--
          (1) all claims for water rights in the Taos Valley that the 
        Pueblo, or the United States acting in its capacity as trustee 
        for the Pueblo, asserted, or could have asserted, in any 
        proceeding, including but not limited to in New Mexico v. 
        Abeyta and New Mexico v. Arellano, Civil Nos. 7896-BB (U.S.6 
        D.N.M.) and 7939-BB (U.S. D.N.M.) (consolidated), up to and 
        including the Enforcement Date, except to the extent that such 
        rights are recognized in the Settlement Agreement or this Act;
          (2) all claims for water rights, whether for consumptive or 
        nonconsumptive use, in the Rio Grande mainstream or its 
        tributaries that the Pueblo, or the United States acting in its 
        capacity as trustee for the Pueblo, asserted or could assert in 
        any water rights adjudication proceedings except those claims 
        based on Pueblo or United States ownership of lands or water 
        rights acquired after the Enforcement Date, provided that 
        nothing in this paragraph shall prevent the Pueblo or the 
        United States from fully participating in the inter se phase of 
        any such water rights adjudication proceedings;
          (3) all claims for damages, losses or injuries to water 
        rights or claims of interference with, diversion or taking of 
        water (including but not limited to claims for injury to lands 
        resulting from such damages, losses, injuries, interference 
        with, diversion, or taking) in the Rio Grande mainstream or its 
        tributaries or for lands within the Taos Valley that accrued at 
        any time up to and including the Enforcement Date; and
          (4) all claims against the State of New Mexico, its agencies, 
        or employees relating to the negotiation or the adoption of the 
        Settlement Agreement.
  (b) Claims by the Pueblo Against the United States.--The Pueblo, on 
behalf of itself and its members, is 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 Taos Valley that the United States acting in its capacity 
        as trustee for the Pueblo asserted, or could have asserted, in 
        any proceeding, including but not limited to in New Mexico v. 
        Abeyta and New Mexico v. Arellano, Civil Nos. 7896-BB (U.S.6 
        D.N.M.) and 7939-BB (U.S. D.N.M.) (consolidated);
          (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 but not limited to 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) in the Rio Grande mainstream or its tributaries 
        or within the Taos Valley that first accrued at any time up to 
        and including the Enforcement Date;
          (3) all claims against the United States, its agencies, or 
        employees for an accounting of funds appropriated by the Act of 
        March 4, 1929 (45 Stat. 1562), the Act of March 4, 1931 (46 
        Stat. 1552), 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 Pueblo's water rights in New Mexico v. Abeyta and New 
        Mexico v. Arellano, Civil Nos. 7896-BB (U.S.6 D.N.M.) and 7939-
        BB (U.S. D.N.M.) (consolidated); 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 
        Final Decree, or this Act.
  (c) Reservation of Rights and Retention of Claims.--Notwithstanding 
the waivers and releases authorized in this Act, the Pueblo on behalf 
of itself and its members and the United States acting in its capacity 
as trustee for the Pueblo retain--
          (1) all claims for enforcement of the Settlement Agreement, 
        the Final Decree, including the Partial Final Decree, the San 
        Juan-Chama Project contract between the Pueblo and the United 
        States, or this Act;
          (2) all claims against persons other than the Parties to the 
        Settlement Agreement for damages, losses or injuries to water 
        rights or claims of interference with, diversion or taking of 
        water rights (including but not limited to claims for injury to 
        lands resulting from such damages, losses, injuries, 
        interference with, diversion, or taking of water rights) within 
        the Taos Valley arising out of activities occurring outside the 
        Taos Valley or the Taos Valley Stream System;
          (3) all rights to use and protect water rights acquired after 
        the date of enactment of this Act;
          (4) all rights to use and protect water rights acquired 
        pursuant to State law, to the extent not inconsistent with the 
        Partial Final Decree and the Settlement Agreement (including 
        water rights for the land the Pueblo owns in Questa, New 
        Mexico);
          (5) all claims relating to activities affecting the quality 
        of water including but not limited to any claims the Pueblo 
        might have under the Comprehensive Environmental Response, 
        Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et 
        seq.) (including but not limited to 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 Acts;
          (6) all claims relating to damages, losses, or injuries to 
        land or natural resources not due to loss of water or water 
        rights (including but not limited to hunting, fishing, 
        gathering, or cultural rights); and
          (7) all rights, remedies, privileges, immunities, powers, and 
        claims not specifically waived and released pursuant to this 
        Act and 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 
        but not limited to any laws relating to health, safety, or the 
        environment, including but not limited to the Federal Water 
        Pollution Control Act (33 U.S.C. 1251 et seq.), the Safe 
        Drinking Water Act (42 U.S.C. 300f et seq.), the Comprehensive 
        Environmental Response, Compensation, and Liability Act of 1980 
        (42 U.S.C. 9601 et seq.), the Solid Waste Disposal Act (42 
        U.S.C. 6901 et seq.), and the regulations implementing such 
        Acts;
          (2) affects the ability of the United States to take actions 
        acting in its capacity as trustee for any other Indian tribe or 
        allottee;
          (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; 
                or
          (4) waives any claim of a member of the Pueblo in an 
        individual capacity that does not derive from a right of the 
        Pueblo.
  (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 the earlier of--
                  (A) December 31, 2016; or
                  (B) the Enforcement Date.
          (2) Effect of subsection.--Nothing in this subsection revives 
        any claim or tolls any period of limitation or time-based 
        equitable defense that expired before the date of enactment of 
        this Act.
          (3) Limitation.--Nothing in this subsection precludes the 
        tolling of any period of limitations or any time-based 
        equitable defense under any other applicable law.

SEC. 12. INTERPRETATION AND ENFORCEMENT.

  (a) Limited Waiver of Sovereign Immunity.--Upon and after the 
Enforcement Date, if any Party to the Settlement Agreement brings an 
action in any court of competent jurisdiction over the subject matter 
relating only and directly to the interpretation or enforcement of the 
Settlement Agreement or this Act, and names the United States or the 
Pueblo as a party, then the United States, the Pueblo, or both may be 
added as a party to any such action, and any claim by the United States 
or the Pueblo to sovereign immunity from the action is waived, but only 
for the limited and sole purpose of such interpretation or enforcement, 
and no waiver of sovereign immunity is made for any action against the 
United States or the Pueblo that seeks money damages.
  (b) Subject Matter Jurisdiction Not Affected.--Nothing in this Act 
shall be deemed as conferring, restricting, enlarging, or determining 
the subject matter jurisdiction of any court, including the 
jurisdiction of the court that enters the Partial Final Decree 
adjudicating the Pueblo's water rights.
  (c) Regulatory Authority Not Affected.--Nothing in this Act shall be 
deemed to determine or limit any authority of the State or the Pueblo 
to regulate or administer waters or water rights now or in the future.

SEC. 13. DISCLAIMER.

  Nothing in the Settlement Agreement or this Act shall be construed in 
any way to quantify or otherwise adversely affect the land and water 
rights, claims, or entitlements to water of any other Indian tribe.

                          PURPOSE OF THE BILL

    The purpose of H.R. 3254 is to approve the Taos Pueblo 
Indian Water Rights Settlement Agreement, and for other 
purposes.

                  BACKGROUND AND NEED FOR LEGISLATION

    The Taos Pueblo is located approximately 70 miles north of 
Santa Fe, encompassing an area of approximately 100,000 acres 
of land, with more than 2,450 enrolled tribal members. The 
Pueblo of Taos is the only living Native American community 
designated both a World Heritage Site by the United Nations 
Educational, Scientific, and Cultural Organization (UNESCO), as 
well as being a registered National Historic Landmark. The 
pueblo's multi-storied adobe buildings have been continuously 
inhabited for over 1,000 years.
    H.R. 3254 would settle the water rights claims of Taos 
Pueblo and the 40 year-old litigation dealing with the 
adjudication of the Rio Pueblo de Taos and Rio Hondo stream 
systems (titled the State of New Mexico ex rel. State Engineer, 
et al. v. Abeyta and the State of New Mexico ex rel. State 
Engineer v. Arellano et al. (Civil Nos. 7896-BB (U.S. 6 D.N.M.) 
and 7939-BB (U.S. D.N.M.) (consolidated)).
    A Settlement Agreement was signed in May of 2006 by the 
Pueblo of Taos, the State of New Mexico, the Taos Valley 
Acequia Association (representing 55 community ditch 
associations), the Town of Taos, El Prado Water and Sanitation 
District, and the 12 Taos-area Mutual Domestic Water Consumer 
Associations. Collectively the parties to the Agreement 
represent the majority of water users in the Taos Valley. The 
settlement provides water certainty to both tribal and non-
tribal communities.
    H.R. 3254 would ratify and approve the Settlement Agreement 
and quantify the Taos Pueblo's water rights in the Taos Valley 
System. The settlement secures to the Pueblo water rights 
totaling 11,927.51 acre-feet per year (AFY) in depletions, 
including 2,215 AFY from the San Juan-Chama Project. The Pueblo 
agreed to initially forbear using 4,678 AFY of this amount as 
of the settlement signing date to allow for continued non-
Indian use. The Pueblo will then buy those water rights as they 
become available.

                            COMMITTEE ACTION

    H.R. 3254 was introduced on July 17, 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 hearing on the bill.
    On September 30, 2009, the Subcommittee was discharged from 
the further consideration of H.R. 3254 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 responded to certain concerns 
raised by the Department of the Interior. 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 ``Taos 
Pueblo Indian Water Rights Settlement Act,'' and provides the 
table of contents.

Section 2. Purpose

    Section two gives the purposes of the Act as: (1) to 
approve, ratify and confirm the Taos Pueblo Indian Water Rights 
Settlement Agreement, (2) to authorize and direct the Secretary 
of the Interior to execute the Settlement Agreement and to 
perform all obligations of the Secretary under the Settlement 
Agreement and Act, and (3) to authorize all actions and 
appropriations necessary for the United States to meet its 
obligations under the Settlement Agreement and this Act.

Section 3. Definitions

    Section 3 provides definitions of terms used in the Act.

Section 4. Pueblo rights

    Subsection 4(a) states that tribal water rights to which 
the Pueblo is entitled under the Partial Final Decree will be 
held in trust by the United States, through the Secretary of 
the Interior, on behalf of the Pueblo. The Tribes' water rights 
cannot be lost by forfeiture, abandonment, or permanent 
alienation.
    Subsection 4(b) states that the Pueblo shall not be denied 
their rights held in trust without the Pueblo's consent unless 
repealed by a future Act of Congress.

Section 5. Pueblo water infrastructure and watershed enhancement

    Subsection 5(a) authorizes the Secretary, acting through 
the Commissioner of Reclamation, to provide nonreimbursable 
grants and technical assistance and prescribes the purposes 
thereof.
    Subsection 5(b) provides that all amounts appropriated or 
received from other sources will be available for grants to the 
Pueblo after the listed requirements are met.
    Subsection 5(c) authorizes the Secretary to provide 
financial assistance, pursuant to subsection 5(a) when the 
Pueblo submits a plan that identifies projects to be 
implemented, consistent with the purposes of this section.
    Subsection 5(d) makes $10 million of the monies authorized 
to be appropriated available for early funding through grants 
to the Pueblo to be distributed by the Secretary on receipt of 
written notice in the form of a Tribal Council resolution, and 
a plan under subsection (c).

Section 6. Taos Pueblo Water Development Fund

    Subsection 6(a) establishes the Taos Pueblo Water 
Development Fund within the United States Treasury to pay for 
or reimburse the costs incurred by the Pueblo for the purposes 
listed in the subsection.
    Subsections 6(b,) 6(c) and 6(d) direct the Secretary to 
manage and invest the amounts in the fund and establish the 
availability date.
    Subsection 6(e) lists the conditions for expenditures and 
withdrawals, including the submission of a tribal management 
plan to the Secretary by the Pueblo.
    Subsection 6(f) authorizes that $15 million of the monies 
authorized to be appropriated under section 10(c)(2) may be 
used for purposes listed in subsection 6(f)(1) and, upon 
appropriation or availability from other authorized sources, be 
distributed by the Secretary to the Pueblo upon receipt of 
written notice from the Taos Tribal Council.
    Subsection 6(g) specifies that funds from the Taos Pueblo 
Water Development Fund are not to be distributed to Pueblo 
members on a per capita basis.

Section 7. Marketing

    Subsection 7(a) allows the Pueblo, subject to the approval 
of the Secretary under subsection (e), to market water rights 
secured under the Settlement Agreement and partial Final 
Decree.
    Subsection 7(b) allows the Pueblo, subject to approval of 
the Secretary, to subcontract San Juan-Chama water made 
available to the Pueblo under this Act to third parties for use 
within the Taos Valley.
    Subsection 7(c) subjects diversions or use of San Juan-
Chama water off Pueblo Lands to the same federal, state and 
interstate compact requirements as non-Pueblo San Juan-Chama 
water and provides that such diversions or use will not impair 
water rights or increase water depletions within the Taos 
Valley.
    Subsection 7(d) requires that water leases or subcontracts 
cannot exceed 99 years. The Pueblo is not authorized to 
permanently alienate any of its rights under the Settlement 
Agreement, the Partial Final Decree and this Act.
    Subsection 7(e) provides that the Secretary has 180 days 
after submission or 60 days after compliance, if required, with 
the National Environmental Policy Act of 1969, to approve or 
disapprove any lease or subcontract, but provides that water 
leases for less than seven years do not require the approval of 
the Secretary.
    Subsection 7(f) provides that the nonuse by a lessee or 
subcontractor of Pueblo contracted water will not result in a 
forfeiture, abandonment, relinquishment or other loss of the 
Pueblo's right.
    Subsection 7(g) provides that the approval authority of the 
Secretary shall not amend, construe, supersede or preempt any 
state or federal law, interstate compact, or international 
treaty that pertains to the Colorado River, the Rio Grande, or 
any of their tributaries.
    Subsection 7(h) provides that nothing in this Act shall be 
construed to establish, address, prejudice, or prevent any 
party from litigating whether or to what extent any applicable 
state law, federal law or interstate compact does or does not 
permit, govern, or apply to the use of the Pueblo's water 
outside of New Mexico.

Section 8. Mutual-benefit projects

    Subsection 8(a) directs the Secretary, acting through the 
Commissioner of Reclamation, to provide financial assistance in 
the form of non-reimbursable grants to eligible non-Pueblo 
entities to plan, permit, design, engineer and construct the 
Mutual-Benefit Projects in accordance with the Settlement 
Agreement.
    Subsection 8(b) defines the cost share for the Mutual-
Benefit Projects to a 75 percent non-reimbursable federal share 
and 25 percent non-federal cost share.

Section 9. San Juan-Chama project contracts

    Subsection 9(a) states that contracts issued under this 
section must be in accordance with this Act and the Settlement 
Agreement.
    Subsection 9(b) directs the Secretary to enter into three 
repayment contracts, no later than 180 days from the date of 
enactment of this Act, for the delivery of certain amounts of 
San Juan-Chama Project Water, and provides requirements for the 
contracts.
    Subsection 9(c) waives the entirety of the Pueblo's share 
of construction costs for the San Juan-Chama Project as non-
reimbursable. Waiver of the Pueblo's share of construction 
costs will not result in an increase in the pro rata share of 
other San Juan-Chama water contractors but such costs will be 
absorbed by the United States Treasury or otherwise 
appropriated to the Department of the Interior.

Section 10. Authorizations, ratifications, confirmations and conditions 
        precedent

    Subsection 10(a) authorizes, ratifies and confirms the 
Settlement Agreement and any amendments made to the Settlement 
Agreement to make the Agreement consistent with this Act.
    Subsection 10(b) authorizes and directs the Secretary to 
execute the Settlement Agreement as approved by Congress.
    Subsection 10(c) creates a settlement fund and authorizes 
the appropriation of $30 million for fiscal years 2010-2016, as 
adjusted for changes in construction costs since April 1, 2007, 
to fund the water infrastructure and watershed enhancement 
projects as authorized in section 5. It also authorizes to be 
appropriated $58 million for fiscal years 2010-2016, as 
adjusted for changes in construction costs since April 1, 2007, 
to the Taos Pueblo Water Development Fund, established in 
section 6(a). This subsection also authorizes to be 
appropriated $33 million for fiscal years 2010-2016, as 
adjusted for inflation since April 1, 2007 for certain grants 
pursuant to section 8. Monies in both funds are to be made 
available upon the enforcement date, except as provided in 
section 5(d).
    Subsection 10(d) and 10(e) authorize and direct the 
Secretary to execute the Agreement as approved by Congress and 
to carry out any and all environmental compliance required by 
federal law.
    Subsection 10(f) lists the conditions precedent for the 
settlement to come into effect and requires the Secretary to 
publish in the Federal Register a statement once the conditions 
are met.
    Subsection 10(g) states that the Settlement Agreement is 
enforceable and the waivers and releases are effective on the 
date the Secretary publishes the notice in the Federal 
Register.
    Subsection 10(h) states that the agreement is null and void 
if its conditions are not fulfilled by December 31, 2016, with 
exceptions providing that the Pueblo can retain early money 
made available under section 5(d) and 6(f). The United States 
is entitled under this circumstance to set off any funds 
expended or withdrawn from the amount appropriated in the Taos 
Pueblo Infrastructure and Watershed Fund and the Taos Pueblo 
Water Development Fund.

Section 11. Waivers and releases

    Subsection 11(a) requires the Pueblo and the United States 
to execute specified waivers and releases, including those 
associated with the water rights claims of Taos Pueblo and the 
United States in its capacity as trustee for the Pueblo in the 
Taos Valley or the Rio Grande mainstream or tributary water.
    Subsection 11(b) authorizes the Taos Pueblo to execute 
specified waivers and releases of certain claims against the 
United States, including those associated with Taos Pueblo's 
water rights claims.
    Subsection 11(c) identifies certain rights and claims of 
Taos Pueblo and the United States on its behalf that are 
retained and provides that all rights, remedies, privileges, 
immunities, powers and claims not specifically waived are 
retained.
    Section 11(d) provides that the Settlement Agreement or 
this Act does not affect certain federal laws, trust 
responsibilities, confer on a state court jurisdiction over 
certain actions, or waive certain rights of any individual 
Pueblo member.
    Section 11(e) provides for the tolling of periods of 
limitation and time-based equitable defenses relating to claims 
described in this section.

Section 12. Interpretation and enforcement

    Subsection 12(a) provides for a limited waiver of sovereign 
immunity on the part of the United States or the Pueblo.
    Subsection 12(b) provides that nothing in this Act shall 
effect the subject matter jurisdiction of any court, including 
the court that enters the Partial Final Decree adjudicating the 
Pueblo's water rights.
    Subsection 12(c) provides that nothing in this Act shall 
determine or limit the authority of the State of New Mexico or 
the Pueblo to regulate or administer water or water rights 
currently or in the future.

Section 13. Disclaimer

    Section 13 provides that nothing in this Act affects any 
water right or claim of any Indian tribe, band or community 
other than the Pueblo of Taos.

            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 approve the Taos Pueblo Indian 
Water Rights Settlement Act, and for other purposes.
    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. 3254--Taos Pueblo Indian Water Rights Settlement Act

    Summary: H.R. 3254 would approve and ratify a settlement 
agreement between the Taos Pueblo and the state of New Mexico. 
The agreement would settle the Pueblo's claims to water rights 
in the state. As part of that agreement, the bill would 
authorize the appropriation of funds to construct and 
rehabilitate water infrastructure and preserve environmentally 
sensitive lands in the Taos Valley. The bill also would 
establish a trust fund for the Pueblo to acquire water rights 
and maintain the water infrastructure. Finally, the bill would 
authorize appropriations to mitigate any adverse impacts on 
Pueblo lands caused by diverting water to execute the 
settlement agreement.
    Based on information from the Department of the Interior 
(DOI), CBO estimates that implementing H.R. 3254 would cost $25 
million over the 2010-2014 period and an additional $114 
million to be spent beginning in fiscal year 2017 (as specified 
by the proposed settlement agreement), assuming appropriation 
of the necessary amounts. Enacting H.R. 3254 would not affect 
direct spending or revenues.
    H.R. 3254 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would impose no costs on state, local, or tribal 
governments.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 3254 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

Pueblo Water Infrastructure:
    Estimated Authorization Level..................         1         3         3         3         0         10
    Estimated Outlays..............................         1         3         3         3         0         10
Water Development Fund:
    Estimated Authorization Level..................         3         3         3         3         3         15
    Estimated Outlays..............................         3         3         3         3         3         15
    Total Spending Under H.R. 3254:
        Estimated Authorization Level..............         4         6         6         6         3         25
        Estimated Outlays..........................         4         6         6         6         3         25
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that H.R. 
3254 will be enacted early in fiscal year 2010 and that the 
necessary amounts will be appropriated each year. The 
enforcement of the settlement agreement depends on the 
completion of a number of actions by federal, state, local, and 
tribal entities. CBO expects that those actions will be 
completed early in 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, the Taos Pueblo in New Mexico and several other 
parties signed a settlement agreement resolving a water-rights 
dispute in the Taos Valley. The United States would become a 
party to that agreement upon enactment of H.R. 3254, provided 
that certain other conditions are met. Among those conditions, 
the Secretary 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 
partial decree concerning the agreement; the Congress would 
have to appropriate sufficient funds to carry out certain 
provisions of the bill, which CBO estimates would cost $139 
million; and New Mexico would have to appropriate amounts it 
would owe the Pueblo under the agreement.
    Based on information from DOI and assuming appropriation of 
the necessary amounts, CBO estimates that implementing the 
legislation would cost $25 million over the 2010-2014 period 
and $114 million after 2016. Should the Secretary of the 
Interior not publish the required statement of findings by 
December 31, 2016, verifying that all conditions necessary to 
execute the agreement have been met, the agreement would not 
take effect, and any appropriated funds that remain unspent and 
title to any property acquired or constructed with federal 
funds would be returned to the federal government (unless 
otherwise specified by the bill).

Pueblo water infrastructure

    Section 5 would authorize the Secretary of the Interior to 
provide grants to the Taos Pueblo to construct and maintain 
water infrastructure and to restore and protect environmentally 
sensitive lands and watersheds. The bill would authorize the 
appropriation of $30 million (plus additional amounts needed 
because of increases in construction costs) over the 2010-2016 
period. Of that amount, $10 million could be expended upon 
appropriation. The remaining $20 million would not be available 
to the Secretary until the enforcement date of the settlement--
near the beginning of fiscal year 2017. CBO estimates that 
implementing this grant program would cost $10 million over the 
2010-2014 period and an additional $24 million beginning in 
2017.

Water Development Fund

    Section 6 would authorize the appropriation of $58 million 
(plus additional amounts needed because of increases in 
construction costs) over the 2010-2016 period for the Taos 
Pueblo Water Development Fund. The Secretary of the Interior 
would be directed to hold those funds in trust for the Pueblo 
until the enforcement date of the settlement--the beginning of 
fiscal year 2017. After that date, the Secretary would be 
required to invest amounts in the fund in U.S. Treasury 
obligations, and those amounts would be available to the Pueblo 
to construct, operate, and maintain certain water system 
facilities owned or operated by the Pueblo.
    Of the total amount authorized to be appropriated to the 
fund, $15 million would be available immediately for the Pueblo 
to acquire certain water rights. Control over those amounts 
would be transferred to the Pueblo when appropriated. The 
remaining amounts could be spent by the Pueblo only after the 
settlement agreement is executed. Assuming appropriation of the 
authorized amounts, CBO estimates that outlays from the fund 
would total $15 million over the 2010-2014 period and $52 
million after 2016.
    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 Taos Pueblo Water Development Fund 
(excluding amounts made available to acquire water rights) 
would be recorded as an outlay in 2017 when the funds could be 
spent by the Pueblo. Subsequently, any use of such funds would 
have no effect on the federal budget. Because H.R. 3254 directs 
the Secretary to invest amounts in the fund only after those 
amounts are available to the Pueblo, CBO expects that no 
interest would accrue on the amounts in the fund until after 
the payments are made in 2017.

Mutual-benefit projects

    Section 8 would authorize the Secretary of the Interior to 
provide grants to local governments (other than the Taos 
Pueblo) for projects intended to mitigate the impact of 
diverting water from present uses to execute the settlement. 
The bill would authorize the appropriation of $33 million (plus 
additional amounts needed because of increases in constructions 
costs) over the 2010-2016 period. The funds would be available 
on the settlement's enforcement date--the beginning of fiscal 
year 2017. Assuming appropriation of the authorized amounts, 
CBO estimates that implementing this grant program would have 
no cost over the 2010-2014 period and would cost $38 million 
after 2016.
    Intergovernmental and private-sector impact: H.R. 3254 
contains no intergovernmental or private-sector 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.
    Previous CBO estimate: On October 13, 2009, CBO transmitted 
a cost estimate for S. 965, the Taos Pueblo Indian Water Rights 
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: Marin Randall.
    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. 3254 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

    H.R. 3254, the Taos Pueblo Indian Water Rights Settlement 
Act reflects a large amount of work, time and patience by the 
people of the Pueblo of Taos and their local, state and federal 
partners. It is unacceptable that there has been 40 years of 
outstanding litigation dealing with the adjudication of the Rio 
Pueblo de Taos and Rio Hondo stream systems (titled the State 
of New Mexico ex rel. State Engineer, et al. v. Abeyta and the 
State of New Mexico ex rel. State Engineer v. Arellano et al. 
(consolidated)). Enactment of H.R. 3254 would adjudicate the 
water rights of the Pueblo of Taos, end 40 years of litigation, 
and will provide certainty to the water rights of the Pueblo of 
Taos and the non- pueblos in the Taos Valley.
    Since the Criteria and Procedures have been issued, there 
has been consensus policy that negotiated Indian water rights 
settlements are preferable to protracted and divisive 
litigation. In this case, according to testimony given by the 
Bureau of Reclamation Commissioner Michael L. Connor, ``the 
willingness of the Taos Pueblo, in particular, to agree to 
reasonable and necessary compromises has been impressive, and 
the leadership of the Pueblo negotiation team is to be 
commended for dedication and steadfastness over many years of 
very difficult negotiations.''
    There has also been concerns raised that resolving water 
rights is a way of asking taxpayers to pay for a project from 
which those taxpayers derive no benefit. The commitment of the 
federal government to act as the Trustee of the Pueblo comes 
with a responsibility to address the water rights of each tribe 
or pueblo.
    Included with these views is a November 3, 2009, letter 
submitted by the Taos Pueblo (Pueblo) in response to the 
October 22, 2009 letter, to the Subcommittee on Water and Power 
by Commissioner Michael L. Connor regarding H.R. 3254.
    Based on testimony provided by the Commissioner of the 
Bureau of Reclamation, if the claims asserted in litigation by 
the United States and the Pueblo were successful, ``the court 
could award the Pueblo rights to approximately 78,000 AFY of 
diversion and 35,000 AFY of depletion of water in the basin.'' 
The Pueblo of Taos settled for a water right of 11,927 acre-
feet depletion. With an estimated cost of water rights in 
northern New Mexico to be as much as $10,500 to $12,000 per 
acre-foot of consumptive use per year, the value of this water 
could be estimated to be as much as $240 million. This 
potential value is much more than the amount that is authorized 
to be appropriated in H.R. 3254, a clear financial benefit to 
all taxpayers. The Administration further recognizes that there 
is no guarantee that the Pueblo will be able to require enough 
state-based water to pull all its forborne water rights to use, 
which the Pueblo sees as the Pueblo ``bearing'' the risk.
    The Pueblo has also agreed to language changes proposed by 
the Administration by deleting the exemption from Secretarial 
approval of subcontracts of the San Juan-Chama Project water 
from terms less than seven years in section 7(e)(2) and 
extending the time for the Secretary of the Interior to enter 
into the San Juan-Chama Project contracts to six months after 
enactment.
    In context, all settlements are unique and focused on the 
needs of the specific of each tribe or pueblo. The difference 
between settlements is the degree to which the details have 
been worked out before any legislation is introduced. In the 
case of the Pueblo of Taos, the details have been addressed and 
there is unanimous support for the Settlement between the 
Pueblo and non-Pueblos within the Taos Valley.
    We hope that this Administration will continue to 
rededicate itself and commit its resources to fulfilling its 
leadership role in the settlement negotiations process.
    Enclosure (1).
                                   Grace F. Napolitano.
                                   Martin Heinrich.
                                   
                                   

                          ADDITIONAL VIEWS OF
                      THE HONORABLE TOM McCLINTOCK

    On September 30, 2009, the Natural Resources Committee met 
to mark up H.R. 3254. This bill authorizes the Secretary of the 
Interior to approve the settlement of water rights claims of 
the Taos Pueblos.
    This bill rightly attempts to resolve longstanding Indian 
water rights claims, but Congress lacks sufficient information 
to assess whether the $136 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.
    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.
    But Congress must also 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. 3254.
    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 to determine the company's financial 
exposure absent the settlement.
    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 from Justice to this question, and I 
fundamentally believe that Congress needs this and other 
answers before moving forward with spending hundreds of 
millions of 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 
on 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 with the large amount 
of taxpayer funding in this bill--scored by the Congressional 
Budget Office as $25 million for 2010-2014 and an additional 
$114 million after 2017--I have serious concerns with the way 
this Congress and the Obama Administration are moving forward 
on H.R. 3254 and Indian water rights settlement bills in 
general.

                                                    Tom McClintock.


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