[Senate Report 114-41]
[From the U.S. Government Publishing Office]


                                                        Calendar No. 81
114th Congress       }                                   {       Report
                                 SENATE
 1st Session         }                                   {       114-41

======================================================================



 
TO MAKE TECHNICAL CORRECTIONS TO THE NAVAJO WATER RIGHTS SETTLEMENT IN 
            THE STATE OF NEW MEXICO, AND FOR OTHER PURPOSES

                                _______
                                

                  May 11, 2015.--Ordered to be printed

                                _______
                                

          Mr. Barrasso, from the Committee on Indian Affairs, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 501]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 501) to make technical corrections to the Navajo water 
rights settlement in the State of New Mexico, and for other 
purposes, having considered the same, reports favorably thereon 
without amendment and recommends that the bill do pass.

                                Purpose

    The purpose of S. 501 is to make technical corrections to 
the Navajo-Gallup Water Supply Project, as established by the 
Omnibus Public Land Management Act of 2009, 43 U.S.C. 407 note, 
Pub. Law No. 111-11.

                               Background

    This legislation, S. 501, would make technical amendments 
to the Navajo-Gallup Water Supply Project (Project), which was 
authorized in the Omnibus Public Land Management Act of 2009 
(Act). That Act directed the Secretary of the Interior to 
design, construct, operate and maintain a water supply project 
that would provide water to the Navajo Nation, the Jicarilla 
Apache Nation, and the City of Gallup, New Mexico.
    That Act further provided that the Navajo Nation would pay 
for any costs of operations and maintenance of the Project 
facilities allocable to the Navajo Nation after a 10-year grace 
period that is triggered by the first delivery of project 
water. The original Act also authorized, in error, 2 percent 
and 4 percent of the total Project funding to be used for 
cultural protection and fish and wildlife facilities, 
respectively. This allocation was a reversal of the parties' 
original intent.
    The Act also approved the water rights Settlement Agreement 
between the Navajo Nation, the United States, and the State of 
New Mexico. A separate Contract between the Navajo Nation and 
the United States was also incorporated as part of the 
Settlement Agreement.
    The Act set forth certain deadlines that must be met in 
implementing the Settlement Agreement and Contract and, if 
those deadlines were not met, provided the stream adjudication 
court the authority to nullify the Settlement Agreement. The 
current statutory language also implies that the state stream 
adjudication court would have jurisdiction to nullify the 
Contract between the Navajo Nation and the United States, which 
was not the intent of the parties.
    Finally, the Act limited certain authorized funding to 
include only the construction or rehabilitation of certain 
wells. The Act did not include the funding authorization for 
the planning or design of those projects which are necessary 
components of construction and rehabilitation.

                          Need for Legislation

    This bill is needed to clarify ambiguities in the Omnibus 
Public Land Management Act of 2009 regarding this Project and 
aligns statutory provisions with the original intent of the 
stakeholders. These technical corrections can only be 
accomplished by Congressional action.

                          Legislative History

    This measure, S. 501, was introduced on February 12, 2015, 
by Senators Udall and Heinrich. The bill was referred to the 
Committee on Indian Affairs. No hearing was held on the bill 
this Congress. On February 25, 2015, the Committee met at a 
business meeting to consider the bill. No amendments were 
offered and the bill was ordered to be reported favorably to 
the Senate.
    The House companion bill is H.R. 1406 and was introduced on 
March 17, 2015, by Representative Lujaan. The bill, H.R. 1406, 
was referred to the House Committee on Natural Resources, and 
within the Committee to the Subcommittee on Water, Power, and 
Oceans.
    In the 113th Congress, Senators Udall and Heinrich 
introduced a bill which contained provisions similar to S. 501 
and additional provisions affecting other settlement Acts: the 
Taos Pueblo Indian Water Rights Settlement Act and Aamodt 
Litigation Settlement Act. The bill, S. 1447, was referred to 
the Committee on Indian Affairs. On September 10, 2013, the 
Committee held a hearing on the bill at which the 
Administration testified in support of only the Navajo Nation 
water settlement provisions. On June 11, 2014, the Committee 
met at a business meeting to consider the bill. Two amendments 
were offered. One amendment struck the Taos Pueblo Indian Water 
Rights Settlement Act and Aamodt Litigation Settlement Act 
provisions, leaving only the Navajo Nation water settlement 
provisions. The other amendment changed the title of the bill. 
The bill, as amended, was ordered to be reported favorably to 
the Senate. No further action took place on the bill.

                 Section-by-Section Analysis for S. 501


Section 1--Short title

    This Act may be cited as the ``New Mexico Navajo Water 
Settlement Technical Corrections Act.''

Section 2--Navajo water settlement

    Sections 2(a) and 2(b) correct several misspellings and 
incorrect internal references within the Omnibus Public Land 
Management Act of 2009.
    Section 2(c) clarifies that the Navajo Nation can take 
delivery of non-project water, but it is responsible for the 
associated operation and maintenance costs.
    Section 2(d) addresses the current funding authorization 
for construction and rehabilitation by expressly including the 
planning and design phases of construction and rehabilitation. 
Section 2(d) also corrects an error in the Act which prescribed 
2 percent and 4 percent funding for cultural resource 
protection and fish and wildlife facilities, respectively. 
Section 2(d) switches the percentage allocations to properly 
address the original intent of the parties.
    Finally, Section 2(e) clarifies that the Court presiding 
over the stream adjudication has the jurisdiction to nullify 
the Water Rights Settlement Agreement, but not the Contract 
supplying water to the parties.

                   Cost and Budgetary Considerations

    The following cost estimate, as provided by the 
Congressional Budget Office, dated March 19, 2015, was prepared 
for S. 501:

                                                    March 19, 2015.
Hon. John Barrasso,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 501, the New Mexico 
Navajo Water Settlement Technical Corrections Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Aurora 
Swanson.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

    S. 501 would amend the Navajo Settlement Act to authorize 
the Bureau of Reclamation to use funds for planning and 
designing certain groundwater well projects for the Navajo 
Nation in New Mexico. The bill also would clarify certain 
provisions of that act and shift some spending among authorized 
activities. Based on information from the bureau, CBO estimates 
that implementing the legislation would have no significant 
effect on the federal budget. Because enacting S. 501 would not 
affect revenues or direct spending, pay-as-you-go procedures do 
not apply.
    Under current law, the bureau is authorized to construct 
and rehabilitate groundwater wells and related pipeline 
facilities for municipal and domestic use by the Navajo Nation. 
The bureau is also authorized to plan and design groundwater 
wells subject to the availability of funding for those 
activities from local sponsors. S. 501 would clarify the 
bureau's authority to allocate federal resources for those 
purposes. Based on information from the bureau, those 
activities could be accommodated under the existing 
authorization ceilings for those projects.
    The bill would clarify that the Navajo Nation can take 
delivery of nonproject water but is responsible for any 
associated operation and maintenance costs. S. 501 also would 
reallocate a portion of authorized spending for certain 
groundwater well projects from fish and wildlife facilities to 
the preservation of archaeological resources near those 
projects. CBO estimates those changes would have no significant 
effect on federal spending.
    S. 501 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contact for this estimate is Aurora Swanson. 
The estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

               Regulatory and Paperwork Impact Statement

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires each report accompanying a bill to evaluate the 
regulatory and paperwork impact that would be incurred in 
carrying out the bill. The Committee believes that S. 501 will 
have a minimal impact on regulatory or paperwork requirements.

                        Executive Communications

    The Committee has received no communications from the 
Executive Branch regarding S. 501.

                        Changes in Existing Law

    In accordance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 501, as ordered reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic):

    43 U.S.C. Sec. 407 (Omnibus Public Land Management Act of 2009)


Sec. 10302. Definitions

    In this subtitle:

           *       *       *       *       *       *       *

          (2) Abeyta adjudication.--The term `Abeyta 
        adjudication' means the general stream adjudication 
        that is the subject of the civil actions entitled 
        `State of New Mexico v. Abeyta and State of New Mexico 
        v. [Arrellano] Arellano', Civil Nos. 7896-BB (D.N.M) 
        and 7939-BB (D.N.M.) (consolidated).

           *       *       *       *       *       *       *

          (27) Stream adjudication.--The term `stream 
        adjudication' means the general stream adjudication 
        that is the subject of New Mexico v. United States, et 
        al., No. [75-185] 75-184 (11th Jud. Dist., San Juan 
        County, New Mexico) (involving claims to waters of the 
        San Juan River and the tributaries of that river).

Sec. 10603(c)(2)(A). Delivery and Use of Navajo-Gallup Water Supply 
                    Project Water

           *       *       *       *       *       *       *


                  (i) a part of, and charged against, the 
                available consumptive use apportionment made to 
                the State of Arizona by Article III(a) of the 
                Compact and to the Upper Basin by Article 
                III(a) of the Colorado River Compact, in which 
                case any water so diverted by the Project into 
                the Lower Basin for use within the State of 
                Arizona shall not be credited as water reaching 
                Lee Ferry pursuant to [Article III(c)] Articles 
                III(c) and III(d) of the Colorado River 
                Compact; or
                  (ii) subject to subparagraph (B), a part of, 
                and charged against, the consumptive use 
                apportionment made to the Lower Basin by 
                Article III(a) of the Colorado River Compact, 
                in which case it shall--

           *       *       *       *       *       *       *

                                  (II) be credited as water 
                                reaching Lee Ferry pursuant to 
                                [Article III(c)] Articles 
                                III(c) and III(d) of the 
                                Colorado River Compact; and

Sec. 10604(f)(1). Project Contracts

    (f) Temporary Waivers of Payments.--
          (1) In general.--On the date on which the Secretary 
        declares a section of the Project to be substantially 
        complete and delivery of Project water generated by and 
        through that section of the Project can be made to the 
        Nation, the Secretary may waive, for a period of not 
        more than 10 years, the operation, maintenance, and 
        replacement costs allocable to the Nation for that 
        section of the Project that the Secretary determines 
        are in excess of the ability of the Nation to pay.

           *       *       *       *       *       *       *


Sec. 10609. Authorization of Appropriations

           *       *       *       *       *       *       *


    (b) Appropriations for Conjunctive Use Wells.--
          (1) San juan wells.--There is authorized to be 
        appropriated to the Secretary for the [construction and 
        rehabilitation] planning, design, construction, 
        rehabilitation, and operation and maintenance of 
        conjunctive use wells under section 10606(b) 
        $30,000,000, as adjusted under paragraph (3), for the 
        period of fiscal years 2009 through 2019.
          (2) Wells in the little colorado and rio grande 
        basins.--There are authorized to be appropriated to the 
        Secretary for the [construction and rehabilitation] 
        planning, design, construction, rehabilitation, and 
        operation and maintenance of conjunctive use wells 
        under section 10606(c) such sums as are necessary for 
        the period of fiscal years 2009 through 2024.

           *       *       *       *       *       *       *

    (e) Cultural Resources.--
          (1) In general.--The Secretary may use not more than 
        [2 percent] 4 percent of amounts made available under 
        subsections (a), (b), and (c) for the survey, recovery, 
        protection, preservation, and display of archaeological 
        resources in the area of a Project facility or 
        conjunctive use well.
    (f) Fish and Wildlife Facilities.--
          (1) In general.--In association with the development 
        of the Project, the Secretary may use not more than [4 
        percent] 2 percent of amounts made available under 
        subsections (a), (b), and (c) to purchase land and 
        construct and maintain facilities to mitigate the loss 
        of, and improve conditions for the propagation of, fish 
        and wildlife if any such purchase, construction, or 
        maintenance will not affect the operation of any water 
        project or use of water.

Sec.  10701(e). Agreement

           *       *       *       *       *       *       *


    (e) Nullification.--

           *       *       *       *       *       *       *

          (2) Revocability of agreement, contract and 
        authorizations.--
                  (A) Petition.--If the Nation determines that 
                a deadline described in paragraph (1)(A) is not 
                substantially met, the Nation may submit to the 
                court in the stream adjudication a petition to 
                enter an order terminating the Agreement [and 
                Contract].
                  (B) Termination.--On issuance of an order to 
                terminate the Agreement [and Contract] under 
                subparagraph (A)--
                         (i) the Trust Fund shall be 
                        terminated;
                         (ii) the balance of the Trust Fund 
                        shall be deposited in the general fund 
                        of the Treasury;
                         (iii) the authorizations for 
                        construction and rehabilitation of 
                        water projects under this subtitle 
                        shall be revoked and any Federal 
                        activity related to that construction 
                        and rehabilitation shall be suspended; 
                        and
                         (iv) this part and parts I and III 
                        shall be null and void.
          (3) Conditions not causing nullification of 
        settlement.--
                  (A) In general.--If a condition described in 
                subparagraph (B) occurs, the Agreement [and 
                Contract] shall not be nullified or terminated.

                                  [all]