[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.
---------------------------------------------------------------------------
    \1\207 U.S. 564 (1908).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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]