[House Report 116-440]
[From the U.S. Government Publishing Office]
116th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 116-440
======================================================================
INDIAN WATER RIGHTS SETTLEMENT EXTENSION ACT
_______
July 9, 2020.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Grijalva, from the Committee on Natural Resources, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1904]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 1904) to amend the Omnibus Public Land
Management Act of 2009 to make the Reclamation Water
Settlements Fund permanent, having considered the same, reports
favorably thereon with an amendment and recommends that the
bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Indian Water Rights Settlement
Extension Act''.
SEC. 2. RECLAMATION WATER SETTLEMENTS FUND.
Section 10501 of the Omnibus Public Land Management Act of 2009 (43
U.S.C. 407) is amended--
(1) in subsection (b)(1), by inserting ``and for fiscal year
2031 and each fiscal year thereafter'' after ``For each of
fiscal years 2020 through 2029'';
(2) in subsection (c)--
(A) in paragraph (1)(A), by striking ``for each of
fiscal years 2020 through 2034'' and inserting ``for
fiscal year 2020 and each fiscal year thereafter''; and
(B) in paragraph (3)(C), by striking ``for any
authorized use'' and all that follows through the
period at the end and inserting ``for any use
authorized under paragraph (2).''; and
(3) by striking subsection (f).
Purpose of the Bill
The purpose of H.R. 1904 is to fund water infrastructure
projects by amending the Omnibus Public Land Management Act of
2009 to make the Reclamation Water Settlements Fund permanent.
Background and Need for Legislation
Presently, numerous tribes across the country lack
dependable drinking water, clean water, and wastewater
infrastructure, even though the federal government has a legal
obligation to help ensure tribal water access. To help address
this legal obligation and improve clean water access, Congress
historically has approved and funded Indian water rights
settlements, which pay for water infrastructure serving tribal
communities and quantify Indian reserved water rights.
Indian reserved water rights were first recognized by the
Supreme Court in Winters v. United States in 1908.\1\ Under the
Winters decision, whenever the federal government reserved
lands for an Indian reservation, it also implicitly reserved
enough water to support the purposes of the reservation.
Practically speaking, the ruling means that tribes with
federally established reservations have a legal right to enough
water to sustain their tribal communities.
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\1\207 U.S. 564 (1908).
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Despite the Winters decision, Indian water rights were left
largely undeveloped and unprotected in the decades after 1908.
By and large, the federal government failed to meet its legal
trust responsibility to protect Indian water rights from
competing water users during the 20th century. By contrast,
federal policy and expenditures supported the construction of
numerous water infrastructure projects to deliver water to non-
Indian communities across the west. In many cases, this water
delivered to non-Indian communities is water to which tribes
have a legal entitlement.
Presently, tribes have two options to address the federal
government's failure to honor its trust responsibility and
secure the water they have legal entitlement to: (1) carry out
litigation against the United States and non-Indian water users
or (2) agree to a water settlement agreement with the United
States and non-federal parties. The litigation route can
involve trial costs that require millions of dollars from all
parties for studies, expert reports, attorney fees, and other
expenditures.\2\ The adjudication is often complex and
contentious and can last decades. Litigation also exposes the
federal government to ``breach of trust'' claims for failing to
protect Indian water rights, which can cost taxpayers billions.
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\2\See, e.g., Tribal Water Working Grp., Water in Indian Country:
Challenges and Opportunities (2012), http://uttoncenter.unm.edu/pdfs/
2012White_Paper.pdf.
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Instead of litigation, negotiated Indian water rights
settlements have been the preferred alternative for tribes,
states, and the federal government, including the current
administration and every Republican and Democratic
administration since the 1970s.\3\ Negotiated settlements are
preferred because they relieve taxpayers from significant legal
liability, provide water supply certainty for tribal and
surrounding non-tribal communities, build cooperative solutions
that benefit all stakeholders, and often include funding for
important water infrastructure that allows a tribe to access
the water to which they have a legal entitlement.
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\3\See, e.g., Hearing on H.R. 1904 Before the H. Comm. on Nat.
Res., 116th Cong. (2019) (not printed), https://docs.house.gov/
Committee/Calendar/ByEvent.aspx?EventID=109242 (written statement of
Alan Mikkelsen, Sr. Advisor (Water & W. Res. Issues) to the Sec'y of
the Interior, and Chair, Working Grp. on Indian Water Settlements, U.S.
Dep't of the Interior), https://docs.house.gov/meetings/II/II00/
20190404/109242/HHRG-09116-II00-Wstate-MikkelsenA-20190404.pdf.
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Indian water rights settlements typically address at least
two major issues: quantifying ``paper water'' rights for tribes
and ensuring that actual ``wet water'' reaches Indian lands and
Native peoples through the construction of water delivery and
other infrastructure. In the quantification process, the
parties assess the exact amount of water under a tribe's
reserved right. In order to turn quantified rights into wet
water, tribes will often agree to a lower water quantity than
they have a right to and waive ``breach of trust'' claims
against the federal government in exchange for federal
infrastructure funding. Federal funding provided by these
settlements is often used to construct water infrastructure
serving tribal communities, such as water treatment facilities
and water delivery canals.
Funding Challenges
Since 1978, thirty-six Indian water rights settlements have
been federally approved with an estimated federal cost of
nearly $6 billion.\4\ In the last decade, Congress authorized
seven new settlements that call for federal expenditures
totaling approximately $2.5 billion.\5\ Enacting the settlement
bills currently pending before Congress would cost an
additional $2 billion.\6\ Furthermore, there are an additional
twenty-one federal negotiating teams currently negotiating with
twenty-one tribes on future settlements that will prompt new
settlement legislation expected to cost several billion
more.\7\ In addition to settlements resulting from current
negotiations, more federal negotiating teams will be appointed
in future years that will spur additional settlement
legislation. There are more than 280 federally recognized
tribes in the west alone. While many of these tribes will
require Indian water rights settlements, the federal government
has finalized and funded settlements for only a fraction of the
west's tribes over the past 40 years.
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\4\Indian water rights settlements usually need to be federally
approved by Congressional legislation or, more rarely, by either
administrative action or court decision. Charles v. Stern, Cong.
Research Serv., R44148, Indian Water Rights Settlements (updated May
22, 2020).
\5\See source cited supra note 3.
\6\See S. 3019, sponsored by Sen. Daines; H.R. 644/S. 1207,
sponsored by Ranking Member Bishop and Sen. Romney; H.R. 2549/S. 1277,
sponsored by Rep. O'Halleran and Sen. McSally; and H.R. 3292/S. 1875,
sponsored by Rep. Lujan and Sen. Udall.
\7\STERN, supra note 4, tbl. 2; Hearing on S. 2154, S. 3060, and S.
3168 Before the S. Comm. on Indian Aff., 115th Cong. 11 (2018) (written
statement of Alan Mikkelsen, Sr. Advisor (Water & W. Res. Issues) to
the Sec'y of the Interior, and Chair, Working Grp. on Indian Water
Settlements, U.S. Dep't of the Interior), https://www.govinfo.gov/
content/pkg/CHRG-115shrg31611/pdf/CHRG-115shrg31611.pdf; Federal Teams,
Sec'y's Indian Water Rts. Off., https://www.doi.gov/sites/doi.gov/
files/uploads/2018-06-15_team_and_tribe_list_siwro.pdf.
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Without action, unreliable and insufficient federal funding
will remain a significant barrier to the approval and full
implementation of numerous future settlements. Salt River
Project Associate General Manager David Roberts, appearing
before the Natural Resources Committee, testified that
``funding [for] the infrastructure component of settlements
continues to be a primary barrier'' to the ``successful
completion of Indian water rights settlements.''\8\ Tohono
O'odham Nation Chairman Edward D. Manuel identified similar
funding challenges, testifying that ``the substantial
difficulty in identifying and committing federal resources
necessary to fully and fairly resolve water rights claims has
led to uncertainty for tribes and non-Indians alike. This
uncertainty is badly compounded by chronic underfunding of
already-enacted tribal water settlements.''\9\ Insufficient
funding provided through annual appropriations has also caused
construction delays and increased total project costs.
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\8\Hearing on H.R. 1904 Before the H. Comm. on Nat. Res., 116th
Cong. (2019) (not printed) (written statement of David C. Roberts,
Assoc. Gen. Manager, Salt River Project (Ariz.)), https://
docs.house.gov/meetings/II/II00/20190404/109242/HHRG-116-II00-Wstate-
RobertsD-20190404.pdf.
\9\Hearing on H.R.1904 Before the H. Comm. on Nat. Res., 116th
Cong. (2019) (not printed) (written statement of Edward D. Manuel,
Chairman, Tohono O'odham Nation of Ariz.), https://docs.house.gov/
meetings/II/II00/20190404/109242/HHRG-116-II00-Wstate-ManuelE-
20190404.pdf.
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To help provide a reliable, sufficient funding source to
enact congressionally approved settlements, the Reclamation
Water Settlements Fund (Settlements Fund) was created through
Title X of the Omnibus Public Land Management Act of 2009.\10\
This statute directed the Secretary of the Treasury to annually
deposit into the Settlements Fund, between 2020 and 2029, $120
million in energy royalties from western states and other
revenues (for a total of $1.2 billion) that would otherwise
have been deposited into the Reclamation Fund--a separate
account within the U.S. Treasury authorized by Congress in 1902
to help pay for water infrastructure in the western states.\11\
For many years, the Reclamation Fund has received significant
additional revenues that have gone unused or been diverted by
the annual appropriations process for uses wholly unrelated to
water infrastructure. This longstanding trend has accelerated
in the past decade--deposits into the Reclamation Fund have
exceeded expenditures by approximately $1 billion on average
per year since 2010.\12\ The statute creating the Reclamation
Water Settlement Fund obligates a fraction of the unused
deposits to fund critical tribal water infrastructure projects,
allowing revenues intended for water infrastructure needs to be
used for their intended purpose, instead of allowing the
revenues to go unused or get diverted away from water
infrastructure needs during the annual appropriations process.
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\10\Pub. L. No. 111-11, tit. X, pt. II, Sec. 10,501, 123 Stat. 991,
1375 (2009), https://www.congress.gov/111/plaws/publ11/PLAW-
111publ11.pdf.
\11\Not to be confused with the Reclamation Water Settlements Fund,
the Reclamation Fund was established under the Reclamation Act of 1902
to pay for the construction and maintenance of water projects in the
western United States. 43 U.S.C. Sec. 391 et seq.
\12\Charles V. Stern, Cong. Research Serv., IF10042, The
Reclamation Fund (updated May 21, 2019).
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Some members of the Committee's minority have spoken
against the Reclamation Water Settlements Fund because its
creation in 2009 originally included a delayed revenue sharing
provision, which delayed the use of energy royalties and other
revenues for tribal water infrastructure by a decade. These
delayed revenue sharing provisions were intentionally modeled
on measures supported by Republican Committee Members,
including the Gulf of Mexico Energy Security Act (P.L. 109-
432), which has the same provision delaying revenue sharing by
a decade.
Some members of the Committee's minority also have said an
extension of the Settlements Fund is unneeded at this time
because the Fund will receive $120 million annually until 2029.
The funding made available through 2029, however, is already
spoken for and is expected to be obligated to a handful of
existing, congressionally approved settlements. In written
testimony before the Committee, the Trump administration
confirmed that these existing funds are not expected to be
available for any currently pending or future settlements
absent a Settlements Fund extension, testifying that ``it
appears that there will be little, if any, funding in the
Settlements Fund for settlements'' other than a small number of
existing, Congressionally approved settlements.\13\
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\13\Hearing on H.R. 1904 Before the H. Comm. on Nat. Res., 116th
Cong. (2019) (not printed) (written statement of Alan Mikkelsen, Sr.
Advisor (Water & W. Res. Issues) to the Sec'y of the Interior, and
Chair, Working Grp. on Indian Water Settlements, U.S. Dep't of the
Interior), https://docs.house.gov/meetings/II/II00/20190404/109242/
HHRG-116-II00-Wstate-MikkelsenA-20190404.pdf.
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Other objections raised during Committee proceedings had
little to do with the legislation itself and focused instead on
advocating for a process used by former Chair Rob Bishop to
provide congressional authorization for Indian water rights
settlements. The former process delegated Congress' authority
to authorize settlement approval legislation to staff of the
Departments of Justice and Interior as well as the Office of
Management and Budget by giving each Executive Branch agency
veto power over the House authorizing Committee's ability to
consider settlement legislation. This limitation on Congress'
authority to authorize legislation was not adopted in the 116th
Congress.
H.R. 1904 does not address or amend the settlement
authorization process in any way or affect the requirement that
individual settlements be authorized by Congress. It should be
noted that H.R. 1904 is also similar to Ranking Member Bishop's
Restore Our Parks Act, which similarly redirects surplus
federal energy revenues to specific purposes outside of the
appropriations process.\14\ The primary difference is that H.R.
1904 directs surplus revenues toward meeting tribal trust
obligations and securing clean water infrastructure for Native
American households, which are 19 times as likely as white
households to lack complete running water and indoor
plumbing.\15\
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\14\See section 2 of H.R. 1225.
\15\See, e.g., Digdeep Right to Water Proj. & U.S. Water Alliance,
Closing the Water Access Gap in the United States 22 (2019), http://
uswateralliance.org/sites/uswateralliance.org/files/
Closing%20the%20Water%20Access%20Gap%20in%20the%20United%20States_DIGITA
L.pdf.
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Apart from limited opposition from some Republican members
of the Committee, there is widespread bipartisan support for
extending the Reclamation Water Settlements Fund. A ten-year
extension of the Settlements Fund was recently approved by the
Republican-led Senate committee of jurisdiction without
controversy.\16\ The appointed representatives for all
Republican and Democratic western state governors have also
expressed support for extending the Reclamation Water
Settlements Fund,\17\ along with several major tribal,
municipal, and agricultural water stakeholders across the west.
The Committee and interested stakeholders support an extension
of the Reclamation Water Settlements Fund because it will
prevent costly, protracted, and divisive water rights
litigation across the western states; provide water supply
certainty for the west by settling the west's major remaining
unsettled water rights claims; help enact settlements without
needless and costly delays attributable to an uncertain annual
appropriations process; and secure drinking water, clean water,
and wastewater infrastructure for the numerous tribes suffering
through the health and economic consequences caused by a lack
of safe water and basic water infrastructure.
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\16\See S. Rep. No. 116-189, at 5 (2019), https://www.congress.gov/
116/crpt/srpt189/CRPT-116srpt189.pdf.
\17\See Hearing on H.R.1904 Before the H. Comm. on Nat. Res., 116th
Cong. (2019) (not printed) (written statement of Michelle Bushman,
Legal Counsel, W. States Water Council), https://docs.house.gov/
meetings/II/II00/20190404/109242/HHRG-116-II00-Wstate-BushmanM-
20190404.pdf.
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Committee Action
H.R. 1904 was introduced on March 27, 2019, by Chair Raul
M. Grijalva (D-AZ). The bill was referred solely to the
Committee on Natural Resources. On April 4, 2019, the full
Committee held a hearing on the bill. On February 12, 2020, the
Natural Resources Committee met to consider the bill. Chair
Grijalva offered an amendment in the nature of a substitute,
which was agreed to by voice vote. The bill, as amended, was
adopted and ordered favorably reported to the House of
Representatives by a roll call vote of 22 yeas and 14 nays, as
follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
On July 1, 2020, the House of Representatives passed H.R.
2, the Moving Forward Act, which included the text of H.R.
1904.
Hearings
For the purposes of section 103(i) of H. Res. 6 of the
116th Congress--the following hearing was used to develop or
consider H.R. 1904: legislative hearing by the full House
Committee on Natural Resources held on April 4, 2019.
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.
Compliance With House Rule XIII and Congressional Budget Act
1. Cost of Legislation and the Congressional Budget Act.
With respect to the requirements of clause 3(c)(2) and (3) of
rule XIII of the Rules of the House of Representatives and
sections 308(a) and 402 of the Congressional Budget Act of
1974, the Committee has received the following estimate for the
bill from the Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 24, 2020.
Hon. Raul M. Grijalva,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1904, the Indian
Water Rights Settlement Extension Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Aurora
Swanson.
Sincerely,
Phillip L. Swagel,
Director.
Enclosure.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
H.R. 1904 would appropriate $120 million to the Reclamation
Water Settlements Fund beginning in 2031 and every year
thereafter to pay for the cost of any future Indian water
settlements entered into during 2031 and future years. The fund
was established to provide dedicated funding for federally
approved Indian water settlements, which generally require
construction of water distribution facilities. Because the
appropriation would occur after 2030, CBO estimates there would
be no effect on the budget over the 2020-2030 period.
Under current law, about $1.2 billion is available to fund
those settlements over the 2020-2030 period. However, the fund
expires in 2034 and any unobligated amounts will not be
available for water settlements after that expiration. The bill
would eliminate the termination date.
CBO estimates that enacting H.R. 1904 would increase direct
spending by about $1 billion in each of the four consecutive
10-year periods beginning in 2031. Thus, enacting the bill
would not increase on-budget deficits by more than $5 billion
in any of those periods.
The CBO staff contact for this estimate is Aurora Swanson.
The estimate was reviewed by H. Samuel Papenfuss, Deputy
Director of Budget Analysis.
2. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goals and
objectives of this bill are to fund water infrastructure
projects by amending the Omnibus Public Land Management Act of
2009 to make the Reclamation Water Settlements Fund permanent.
Earmark Statement
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
Unfunded Mandates Reform Act Statement
This bill contains no unfunded mandates.
Existing Programs
This bill does not establish or reauthorize a program of
the federal government known to be duplicative of another
program.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Preemption of State, Local, or Tribal Law
Any preemptive effect of this bill over state, local, or
tribal law is intended to be consistent with the bill's
purposes and text and the Supremacy Clause of Article VI of the
U.S. Constitution.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, and existing law in which no
change is proposed is shown in roman):
OMNIBUS PUBLIC LAND MANAGEMENT ACT OF 2009
* * * * * * *
TITLE X--WATER SETTLEMENTS
Subtitle A--San Joaquin River Restoration Settlement
* * * * * * *
PART II--RECLAMATION WATER SETTLEMENTS FUND
SEC. 10501. RECLAMATION WATER SETTLEMENTS FUND.
(a) Establishment.--There is established in the Treasury of
the United States a fund, to be known as the ``Reclamation
Water Settlements Fund'', consisting of--
(1) such amounts as are deposited to the Fund under
subsection (b); and
(2) any interest earned on investment of amounts in
the Fund under subsection (d).
(b) Deposits to Fund.--
(1) In general.--For each of fiscal years 2020
through 2029 and for fiscal year 2031 and each fiscal
year thereafter, the Secretary of the Treasury shall
deposit in the Fund, if available, $120,000,000 of the
revenues that would otherwise be deposited for the
fiscal year in the fund established by the first
section of the Act of June 17, 1902 (32 Stat. 388,
chapter 1093).
(2) Availability of amounts.--Amounts deposited in
the Fund under paragraph (1) shall be made available
pursuant to this section--
(A) without further appropriation; and
(B) in addition to amounts appropriated
pursuant to any authorization contained in any
other provision of law.
(c) Expenditures From Fund.--
(1) In general.--
(A) Expenditures.--Subject to subparagraph
(B), [for each of fiscal years 2020 through
2034] for fiscal year 2020 and each fiscal year
thereafter, the Secretary may expend from the
Fund an amount not to exceed $120,000,000, plus
the interest accrued in the Fund, for the
fiscal year in which expenditures are made
pursuant to paragraphs (2) and (3).
(B) Additional expenditures.--The Secretary
may expend more than $120,000,000 for any
fiscal year if such amounts are available in
the Fund due to expenditures not reaching
$120,000,000 for prior fiscal years.
(2) Authority.--The Secretary may expend money from
the Fund to implement a settlement agreement approved
by Congress that resolves, in whole or in part,
litigation involving the United States, if the
settlement agreement or implementing legislation
requires the Bureau of Reclamation to provide financial
assistance for, or plan, design, and construct--
(A) water supply infrastructure; or
(B) a project--
(i) to rehabilitate a water delivery
system to conserve water; or
(ii) to restore fish and wildlife
habitat or otherwise improve
environmental conditions associated
with or affected by, or located within
the same river basin as, a Federal
reclamation project that is in
existence on the date of enactment of
this Act.
(3) Use for completion of project and other
settlements.--
(A) Priorities.--
(i) First priority.--
(I) In general.--The first
priority for expenditure of
amounts in the Fund during the
entire period in which the Fund
is in existence shall be for
the purposes described in, and
in the order of, clauses (i)
through (iv) of subparagraph
(B).
(II) Reserved amounts.--The
Secretary shall reserve and use
amounts deposited into the Fund
in accordance with subclause
(I).
(ii) Other purposes.--Any amounts in
the Fund that are not needed for the
purposes described in subparagraph (B)
may be used for other purposes
authorized in paragraph (2).
(B) Completion of project.--
(i) Navajo-gallup water supply
project.--
(I) In general.--Subject to
subclause (II), effective
beginning January 1, 2020, if,
in the judgment of the
Secretary on an annual basis
the deadline described in
section 10701(e)(1)(A)(ix) is
unlikely to be met because a
sufficient amount of funding is
not otherwise available through
appropriations made available
pursuant to section 10609(a),
the Secretary shall expend from
the Fund such amounts on an
annual basis consistent with
paragraphs (1) and (2), as are
necessary to pay the Federal
share of the costs, and
substantially complete as
expeditiously as practicable,
the construction of the water
supply infrastructure
authorized as part of the
Project.
(II) Maximum amount.--
(aa) In general.--
Except as provided
under item (bb), the
amount expended under
subclause (I) shall not
exceed $500,000,000 for
the period of fiscal
years 2020 through
2029.
(bb) Exception.--The
limitation on the
expenditure amount
under item (aa) may be
exceeded during the
entire period in which
the Fund is in
existence if such
additional funds can be
expended without
limiting the amounts
identified in clauses
(ii) through (iv).
(ii) Other new mexico settlements.--
(I) In general.--Subject to
subclause (II), effective
beginning January 1, 2020, in
addition to the funding made
available under clause (i), if
in the judgment of the
Secretary on an annual basis a
sufficient amount of funding is
not otherwise available through
annual appropriations, the
Secretary shall expend from the
Fund such amounts on an annual
basis consistent with
paragraphs (1) and (2), as are
necessary to pay the Federal
share of the remaining costs of
implementing the Indian water
rights settlement agreements
entered into by the State of
New Mexico in the Aamodt
adjudication and the Abeyta
adjudication, if such
settlements are subsequently
approved and authorized by an
Act of Congress and the
implementation period has not
already expired.
(II) Maximum amount.--The
amount expended under subclause
(I) shall not exceed
$250,000,000.
(iii) Montana settlements.--
(I) In general.--Subject to
subclause (II), effective
beginning January 1, 2020, in
addition to funding made
available pursuant to clauses
(i) and (ii), if in the
judgment of the Secretary on an
annual basis a sufficient
amount of funding is not
otherwise available through
annual appropriations, the
Secretary shall expend from the
Fund such amounts on an annual
basis consistent with
paragraphs (1) and (2), as are
necessary to pay the Federal
share of the remaining costs of
implementing Indian water
rights settlement agreements
entered into by the State of
Montana with the Blackfeet
Tribe, the Crow Tribe, or the
Gros Ventre and Assiniboine
Tribes of the Fort Belknap
Indian Reservation in the
judicial proceeding entitled
``In re the General
Adjudication of All the Rights
to Use Surface and Groundwater
in the State of Montana'', if a
settlement or settlements are
subsequently approved and
authorized by an Act of
Congress and the implementation
period has not already expired.
(II) Maximum amount.--
(aa) In general.--
Except as provided
under item (bb), the
amount expended under
subclause (I) shall not
exceed $350,000,000 for
the period of fiscal
years 2020 through
2029.
(bb) Exception.--The
limitation on the
expenditure amount
under item (aa) may be
exceeded during the
entire period in which
the Fund is in
existence if such
additional funds can be
expended without
limiting the amounts
identified in clause
(i), (ii), and (iv).
(cc) Other funding.--
The Secretary shall
ensure that any funding
under this clause shall
be provided in a manner
that does not limit the
funding available
pursuant to clauses (i)
and (ii).
(iv) Arizona settlement.--
(I) In general.--Subject to
subclause (II), effective
beginning January 1, 2020, in
addition to funding made
available pursuant to clauses
(i), (ii), and (iii), if in the
judgment of the Secretary on an
annual basis a sufficient
amount of funding is not
otherwise available through
annual appropriations, the
Secretary shall expend from the
Fund such amounts on an annual
basis consistent with
paragraphs (1) and (2), as are
necessary to pay the Federal
share of the remaining costs of
implementing an Indian water
rights settlement agreement
entered into by the State of
Arizona with the Navajo Nation
to resolve the water rights
claims of the Nation in the
Lower Colorado River basin in
Arizona, if a settlement is
subsequently approved and
authorized by an Act of
Congress and the implementation
period has not already expired.
(II) Maximum amount.--
(aa) In general.--
Except as provided
under item (bb), the
amount expended under
subclause (I) shall not
exceed $100,000,000 for
the period of fiscal
years 2020 through
2029.
(bb) Exception.--The
limitation on the
expenditure amount
under item (aa) may be
exceeded during the
entire period in which
the Fund is in
existence if such
additional funds can be
expended without
limiting the amounts
identified in clauses
(i) through (iii).
(cc) Other funding.--
The Secretary shall
ensure that any funding
under this clause shall
be provided in a manner
that does not limit the
funding available
pursuant to clauses (i)
and (ii).
(C) Reversion.--If the settlements described
in clauses (ii) through (iv) of subparagraph
(B) have not been approved and authorized by an
Act of Congress by December 31, 2019, the
amounts reserved for the settlements shall no
longer be reserved by the Secretary pursuant to
subparagraph (A)(i) and shall revert to the
Fund [for any authorized use, as determined by
the Secretary.] for any use authorized under
paragraph (2).
(d) Investment of Amounts.--
(1) In general.--The Secretary shall invest such
portion of the Fund as is not, in the judgment of the
Secretary, required to meet current withdrawals.
(2) Credits to fund.--The interest on, and the
proceeds from the sale or redemption of, any
obligations held in the Fund shall be credited to, and
form a part of, the Fund.
(e) Transfers of Amounts.--
(1) In general.--The amounts required to be
transferred to the Fund under this section shall be
transferred at least monthly from the general fund of
the Treasury to the Fund on the basis of estimates made
by the Secretary of the Treasury.
(2) Adjustments.--Proper adjustment shall be made in
amounts subsequently transferred to the extent prior
estimates were in excess of or less than the amounts
required to be transferred.
[(f) Termination.--On September 30, 2034--
[(1) the Fund shall terminate; and
[(2) the unexpended and unobligated balance of the
Fund shall be transferred to the appropriate fund of
the Treasury.]
* * * * * * *
DISSENTING VIEWS
Negotiating and litigating over water rights is a uniquely
executive function, but approving a settlement is a legislative
one. Indian water rights settlements are a means of resolving
ongoing water rights disputes among tribes, federal and State
governments, and other parties. These settlements provide
certainty and determine specific terms of water allocation and
use.
Once negotiations have concluded and all sides have agreed
it is in their mutual best interest--then and only then--the
settlement is brought to Congress for ratification and an
appropriation is made to settle and close the case.
That's the way it is supposed to work. That's the way it
once worked. But over the last two decades, this process has
been usurped by Congress. Congress began proposing, negotiating
and agreeing to settlements, even when our lawyers and their
agencies expressed concerns over the terms of the so-called
settlements.
To combat this practice, under Republican leadership, the
Natural Resources Committee implemented a policy to assure that
settlements were only considered once our lawyers and the
relevant agencies agreed that a claim had merit and ought to be
settled to save taxpayers the potential of higher costs if the
matter went to court. At the outset of this Congress, a
Republican amendment was offered to codify this policy in the
Committee rules. Specifically, it provided that before an
Indian water rights settlement is considered by the Natural
Resources Committee that the Departments of Interior and
Justice and the plaintiffs all agree to the settlement and that
the Office of Management and Budget certifies that it doesn't
duplicate claims previously paid, that it doesn't pay meritless
claims, and that it is in the best interests of the U.S.
taxpayers to approve the settlement rather than to go to court.
The amendment was rejected, opening the floodgates to
politically-driven settlement claims being paid regardless of
their actual merit and in a manner that often leaves us open to
still further claims.
H.R. 1904 greases the skids on this practice by permanently
extending the Reclamation Water Settlements Fund, bypassing the
appropriations authority of Congress. This fund was first
created by the Democrats in 2009 using a budget gimmick to
avoid any scoring costs under the analysis of the Congressional
Budget Office (CBO). Now, Democrats are looking to capitalize
on the same budget gimmick to permanently extend this Fund.
In 2009, when this Fund was authorized, the Democratic-led
House approved several water rights settlements that even the
Obama Administration expressed concerns over authorizing. One
example is the White Mountain Apache Tribe settlement. This
settlement had to be fixed several times, most recently in the
Fiscal Year 2020 appropriations package. Before it was passed
into law, Mike Connor, the then-Commissioner of the Bureau of
Reclamation under the Obama Administration, testified that
``Reclamation determined the Tribe's cost estimate of roughly
$126.2 million, which is in the proposed legislation, is not
sufficiently detailed or comprehensive to provide the necessary
assurance that the project can be constructed for that amount
of money.''\1\ He was right.
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\1\https://www.doi.gov/ocl/hearings/111/HR3342_090909.
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The same bill which codified the White Mountain Apache
settlement also approved the Aamodt litigation settlement. On
June 26, 2019, the Water, Oceans, and Wildlife Subcommittee
held a hearing to discuss the Aamodt settlement and found that,
in short, the settlement needs more money. This came as no
surprise as the Obama Administration had also testified that it
is ``concerned about the validity of the cost estimates that
the settlement parties are relying on for the regional water
system. The parties rely on an engineering report dated June
2007 that has not been verified by the level of study that the
Bureau of Reclamation would recommend in order to assure
reliability.''\2\ Ten years later, Congress is faced with the
reality that this settlement could collapse.
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\2\https://www.doi.gov/ocl/hearings/111/HR3342_090909.
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Yet it seems the budget gimmick Democrats used to claim
there is no cost for the creation of the Reclamation Water
Settlements Fund has come back to haunt them. A Senate bill
attempting to fix the Aamodt settlement was recently scored by
CBO as increasing mandatory spending by $157 million over the
next 10 years.
Through H.R. 1904, the Democrat majority is ignoring
reality and permanently extending the Reclamation Water
Settlements Fund. As proposed, this never-ending fund sets a
perverse incentive in which Congress doesn't have to ensure the
settlements it approves are well thought out and complete.
After all, there will always be money available to fix whatever
mess Congress passes. For these reasons, many Republicans
oppose this legislation.
Rob Bishop.
Louie Gohmert.
Tom McClintock.
Paul A. Gosar.
[all]