[House Report 116-673]
[From the U.S. Government Publishing Office]
116th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 116-673
======================================================================
NAVAJO UTAH WATER RIGHTS SETTLEMENT ACT OF 2020
_______
December 18, 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
ADDITIONAL VIEWS
[To accompany H.R. 644]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 644) to approve the settlement of the water
rights claims of the Navajo Nation in Utah, and for other
purposes, 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 ``Navajo Utah Water Rights Settlement
Act of 2020''.
SEC. 2. PURPOSES.
The purposes of this Act are--
(1) to achieve a fair, equitable, and final settlement of all
claims to water rights in the State of Utah for--
(A) the Navajo Nation; and
(B) the United States, for the benefit of the Nation;
(2) to authorize, ratify, and confirm the Agreement entered
into by the Nation and the State, to the extent that the
Agreement is consistent with this Act;
(3) to authorize and direct the Secretary--
(A) to execute the Agreement; and
(B) to take any actions necessary to carry out the
agreement in accordance with this Act; and
(4) to authorize funds necessary for the implementation of
the Agreement and this Act.
SEC. 3. DEFINITIONS.
In this Act:
(1) Agreement.--The term ``agreement'' means--
(A) the document entitled ``Navajo Utah Water Rights
Settlement Agreement'' dated December 14, 2015, and the
exhibits attached thereto; and
(B) any amendment or exhibit to the document or
exhibits referenced in subparagraph (A) to make the
document or exhibits consistent with this Act.
(2) Allotment.--The term ``allotment'' means a parcel of
land--
(A) granted out of the public domain that is--
(i) located within the exterior boundaries of
the Reservation; or
(ii) Bureau of Indian Affairs parcel number
792 634511 in San Juan County, Utah, consisting
of 160 acres located in Township 41S, Range
20E, sections 11, 12, and 14, originally set
aside by the United States for the benefit of
an individual identified in the allotting
document as a Navajo Indian; and
(B) held in trust by the United States--
(i) for the benefit of an individual,
individuals, or an Indian Tribe other than the
Navajo Nation; or
(ii) in part for the benefit of the Navajo
Nation as of the enforceability date.
(3) Allottee.--The term ``allottee'' means an individual or
Indian Tribe with a beneficial interest in an allotment held in
trust by the United States.
(4) Enforceability date.--The term ``enforceability date''
means the date on which the Secretary publishes in the Federal
Register the statement of findings described in section 8(a).
(5) General stream adjudication.--The term ``general stream
adjudication'' means the adjudication pending, as of the date
of enactment, in the Seventh Judicial District in and for Grand
County, State of Utah, commonly known as the ``Southeastern
Colorado River General Adjudication'', Civil No. 810704477,
conducted pursuant to State law.
(6) Injury to water rights.--The term ``injury to water
rights'' means an interference with, diminution of, or
deprivation of water rights under Federal or State law,
excluding injuries to water quality.
(7) Member.--The term ``member'' means any person who is a
duly enrolled member of the Navajo Nation.
(8) Navajo nation or nation.--The term ``Navajo Nation'' or
``Nation'' means a body politic and federally recognized Indian
nation, as published on the list established under section
104(a) of the Federally Recognized Indian Tribe List Act of
1994 (25 U.S.C. 5131(a)), also known variously as the ``Navajo
Nation'', the ``Navajo Nation of Arizona, New Mexico, & Utah'',
and the ``Navajo Nation of Indians'' and other similar names,
and includes all bands of Navajo Indians and chapters of the
Navajo Nation and all divisions, agencies, officers, and agents
thereof.
(9) Navajo water development projects.--The term ``Navajo
water development projects'' means projects for domestic
municipal water supply, including distribution infrastructure,
and agricultural water conservation, to be constructed, in
whole or in part, using monies from the Navajo Water
Development Projects Account.
(10) Navajo water rights.--The term ``Navajo water rights''
means the Nation's water rights in Utah described in the
agreement and this Act.
(11) OM&R.--The term ``OM&R'' means operation, maintenance,
and replacement.
(12) Parties.--The term ``parties'' means the Navajo Nation,
the State, and the United States.
(13) Reservation.--The term ``Reservation'' means, for
purposes of the agreement and this Act, the Reservation of the
Navajo Nation in Utah as in existence on the date of enactment
of this Act and depicted on the map attached to the agreement
as Exhibit A, including any parcel of land granted out of the
public domain and held in trust by the United States entirely
for the benefit of the Navajo Nation as of the enforceability
date.
(14) Secretary.--The term ``Secretary'' means the Secretary
of the United States Department of the Interior or a duly
authorized representative thereof.
(15) State.--The term ``State'' means the State of Utah and
all officers, agents, departments, and political subdivisions
thereof.
(16) United states.--The term ``United States'' means the
United States of America and all departments, agencies,
bureaus, officers, and agents thereof.
(17) United states acting in its trust capacity.--The term
``United States acting in its trust capacity'' means the United
States acting for the benefit of the Navajo Nation or for the
benefit of allottees.
SEC. 4. RATIFICATION OF AGREEMENT.
(a) Approval by Congress.--Except to the extent that any provision of
the agreement conflicts with this Act, Congress approves, ratifies, and
confirms the agreement (including any amendments to the agreement that
are executed to make the agreement consistent with this Act).
(b) Execution by Secretary.--The Secretary is authorized and directed
to promptly execute the agreement to the extent that the agreement does
not conflict with this Act, including--
(1) any exhibits to the agreement requiring the signature of
the Secretary; and
(2) any amendments to the agreement necessary to make the
agreement consistent with this Act.
(c) Environmental Compliance.--
(1) In general.--In implementing the agreement and this Act,
the Secretary shall comply with all applicable provisions of--
(A) the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.);
(B) the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.); and
(C) all other applicable environmental laws and
regulations.
(2) Execution of the agreement.--Execution of the agreement
by the Secretary as provided for in this Act shall not
constitute a major Federal action under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
SEC. 5. NAVAJO WATER RIGHTS.
(a) Confirmation of Navajo Water Rights.--
(1) Quantification.--The Navajo Nation shall have the right
to use water from water sources located within Utah and
adjacent to or encompassed within the boundaries of the
Reservation resulting in depletions not to exceed 81,500 acre-
feet annually as described in the agreement and as confirmed in
the decree entered by the general stream adjudication court.
(2) Satisfaction of allottee rights.--Depletions resulting
from the use of water on an allotment shall be accounted for as
a depletion by the Navajo Nation for purposes of depletion
accounting under the agreement, including recognition of--
(A) any water use existing on an allotment as of the
date of enactment of this Act and as subsequently
reflected in the hydrographic survey report referenced
in section 7(b);
(B) reasonable domestic and stock water uses put into
use on an allotment; and
(C) any allotment water rights that may be decreed in
the general stream adjudication or other appropriate
forum.
(3) Satisfaction of on-reservation state law-based water
rights.--Depletions resulting from the use of water on the
Reservation pursuant to State law-based water rights existing
as of the date of enactment of this Act shall be accounted for
as depletions by the Navajo Nation for purposes of depletion
accounting under the agreement.
(4) In general.--The Navajo water rights are ratified,
confirmed, and declared to be valid.
(5) Use.--Any use of the Navajo water rights shall be subject
to the terms and conditions of the agreement and this Act.
(6) Conflict.--In the event of a conflict between the
agreement and this Act, the provisions of this Act shall
control.
(b) Trust Status of Navajo Water Rights.--The Navajo water rights--
(1) shall be held in trust by the United States for the use
and benefit of the Nation in accordance with the agreement and
this Act; and
(2) shall not be subject to forfeiture or abandonment.
(c) Authority of the Nation.--
(1) In general.--The Nation shall have the authority to
allocate, distribute, and lease the Navajo water rights for any
use on the Reservation in accordance with the agreement, this
Act, and applicable Tribal and Federal law.
(2) Off-reservation use.--The Nation may allocate,
distribute, and lease the Navajo water rights for off-
Reservation use in accordance with the agreement, subject to
the approval of the Secretary.
(3) Allottee water rights.--The Nation shall not object in
the general stream adjudication or other applicable forum to
the quantification of reasonable domestic and stock water uses
on an allotment, and shall administer any water use on the
Reservation in accordance with applicable Federal law,
including recognition of--
(A) any water use existing on an allotment as of the
date of enactment of this Act and as subsequently
reflected in the hydrographic survey report referenced
in section 7(b);
(B) reasonable domestic and stock water uses on an
allotment; and
(C) any allotment water rights decreed in the general
stream adjudication or other appropriate forum.
(d) Effect.--Except as otherwise expressly provided in this section,
nothing in this Act--
(1) authorizes any action by the Nation against the United
States under Federal, State, Tribal, or local law; or
(2) alters or affects the status of any action brought
pursuant to section 1491(a) of title 28, United States Code.
SEC. 6. NAVAJO TRUST ACCOUNTS.
(a) Establishment.--The Secretary shall establish a trust fund, to be
known as the ``Navajo Utah Settlement Trust Fund'' (referred to in this
Act as the ``Trust Fund''), to be managed, invested, and distributed by
the Secretary and to remain available until expended, consisting of the
amounts deposited in the Trust Fund under subsection (c), together with
any interest earned on those amounts, for the purpose of carrying out
this Act.
(b) Accounts.--The Secretary shall establish in the Trust Fund the
following Accounts:
(1) The Navajo Water Development Projects Account.
(2) The Navajo OM&R Account.
(c) Deposits.--The Secretary shall deposit in the Trust Fund
Accounts--
(1) in the Navajo Water Development Projects Account, the
amounts made available pursuant to section 7(a)(1); and
(2) in the Navajo OM&R Account, the amount made available
pursuant to section 7(a)(2).
(d) Management and Interest.--
(1) Management.--Upon receipt and deposit of the funds into
the Trust Fund Accounts, the Secretary shall manage, invest,
and distribute all amounts in the Trust Fund in a manner that
is consistent with the investment authority of the Secretary
under--
(A) the first section of the Act of June 24, 1938 (25
U.S.C. 162a);
(B) the American Indian Trust Fund Management Reform
Act of 1994 (25 U.S.C. 4001 et seq.); and
(C) this section.
(2) Investment earnings.--In addition to the deposits under
subsection (c), any investment earnings, including interest,
credited to amounts held in the Trust Fund are authorized to be
appropriated to be used in accordance with the uses described
in subsection (h).
(e) Availability of Amounts.--Amounts appropriated to, and deposited
in, the Trust Fund, including any investment earnings, shall be made
available to the Nation by the Secretary beginning on the
enforceability date and subject to the uses and restrictions set forth
in this section.
(f) Withdrawals.--
(1) Withdrawals under the american indian trust fund
management reform act of 1994.--The Nation may withdraw any
portion of the funds in the Trust Fund on approval by the
Secretary of a tribal management plan submitted by the Nation
in accordance with the American Indian Trust Fund Management
Reform Act of 1994 (25 U.S.C. 4001 et seq.).
(A) Requirements.--In addition to the requirements
under the American Indian Trust Fund Management Reform
Act of 1994 (25 U.S.C. 4001 et seq.), the Tribal
management plan under this paragraph shall require that
the Nation shall spend all amounts withdrawn from the
Trust Fund and any investment earnings accrued through
the investments under the Tribal management plan in
accordance with this Act.
(B) Enforcement.--The Secretary may carry out such
judicial and administrative actions as the Secretary
determines to be necessary to enforce the Tribal
management plan to ensure that amounts withdrawn by the
Nation from the Trust Fund under this paragraph are
used in accordance with this Act.
(2) Withdrawals under expenditure plan.--The Nation may
submit to the Secretary a request to withdraw funds from the
Trust Fund pursuant to an approved expenditure plan.
(A) Requirements.--To be eligible to withdraw funds
under an expenditure plan under this paragraph, the
Nation shall submit to the Secretary for approval an
expenditure plan for any portion of the Trust Fund that
the Nation elects to withdraw pursuant to this
paragraph, subject to the condition that the funds
shall be used for the purposes described in this Act.
(B) Inclusions.--An expenditure plan under this
paragraph shall include a description of the manner and
purpose for which the amounts proposed to be withdrawn
from the Trust Fund will be used by the Nation, in
accordance with subsections (c) and (h).
(C) Approval.--On receipt of an expenditure plan
under this paragraph, the Secretary shall approve the
plan, if the Secretary determines that the plan--
(i) is reasonable;
(ii) is consistent with, and will be used
for, the purposes of this Act; and
(iii) contains a schedule which described
that tasks will be completed within 18 months
of receipt of withdrawn amounts.
(D) Enforcement.--The Secretary may carry out such
judicial and administrative actions as the Secretary
determines to be necessary to enforce an expenditure
plan to ensure that amounts disbursed under this
paragraph are used in accordance with this Act.
(g) Effect of Act.--Nothing in this Act gives the Nation the right to
judicial review of a determination of the Secretary regarding whether
to approve a Tribal management plan or an expenditure plan except under
subchapter II of chapter 5, and chapter 7, of title 5, United States
Code (commonly known as the ``Administrative Procedure Act'').
(h) Uses.--Amounts from the Trust Fund shall be used by the Nation
for the following purposes:
(1) The Navajo Water Development Projects Account shall be
used to plan, design, and construct the Navajo water
development projects and for the conduct of related activities,
including to comply with Federal environmental laws.
(2) The Navajo OM&R Account shall be used for the operation,
maintenance, and replacement of the Navajo water development
projects.
(i) Liability.--The Secretary and the Secretary of the Treasury shall
not be liable for the expenditure or investment of any amounts
withdrawn from the Trust Fund by the Nation under subsection (f).
(j) No Per Capita Distributions.--No portion of the Trust Fund shall
be distributed on a per capita basis to any member of the Nation.
(k) Expenditure Reports.--The Navajo Nation shall submit to the
Secretary annually an expenditure report describing accomplishments and
amounts spent from use of withdrawals under a Tribal management plan or
an expenditure plan as described in this Act.
SEC. 7. AUTHORIZATION OF APPROPRIATIONS.
(a) Authorization.--There are authorized to be appropriated to the
Secretary--
(1) for deposit in the Navajo Water Development Projects
Account of the Trust Fund established under section 6(b)(1),
$198,300,000, which funds shall be retained until expended,
withdrawn, or reverted to the general fund of the Treasury; and
(2) for deposit in the Navajo OM&R Account of the Trust Fund
established under section 6(b)(2), $11,100,000, which funds
shall be retained until expended, withdrawn, or reverted to the
general fund of the Treasury.
(b) Implementation Costs.--There is authorized to be appropriated
non-trust funds in the amount of $1,000,000 to assist the United States
with costs associated with the implementation of the Act, including the
preparation of a hydrographic survey of historic and existing water
uses on the Reservation and on allotments.
(c) State Cost Share.--The State shall contribute $8,000,000 payable
to the Secretary for deposit into the Navajo Water Development Projects
Account of the Trust Fund established under section 6(b)(1) in
installments in each of the 3 years following the execution of the
agreement by the Secretary as provided for in subsection (b) of section
4.
(d) Fluctuation in Costs.--The amount authorized to be appropriated
under subsection (a) shall be increased or decreased, as appropriate,
by such amounts as may be justified by reason of ordinary fluctuations
in costs occurring after the date of enactment of this Act as indicated
by the Bureau of Reclamation Construction Cost Index--Composite Trend.
(1) Repetition.--The adjustment process under this subsection
shall be repeated for each subsequent amount appropriated until
the amount authorized, as adjusted, has been appropriated.
(2) Period of indexing.--The period of indexing adjustment
for any increment of funding shall end on the date on which
funds are deposited into the Trust Fund.
SEC. 8. CONDITIONS PRECEDENT.
(a) In General.--The waivers and release contained in section 9 of
this Act shall become effective as of the date the Secretary causes to
be published in the Federal Register a statement of findings that--
(1) to the extent that the agreement conflicts with the Act,
the agreement has been revised to conform with this Act;
(2) the agreement, so revised, including waivers and releases
of claims set forth in section 9, has been executed by the
parties, including the United States;
(3) Congress has fully appropriated, or the Secretary has
provided from other authorized sources, all funds authorized
under subsection (a) of section 7;
(4) the State has enacted any necessary legislation and
provided the funding required under the agreement and
subsection (c) of section 7; and
(5) the court has entered a final or interlocutory decree
that--
(A) confirms the Navajo water rights consistent with
the agreement and this Act; and
(B) with respect to the Navajo water rights, is final
and nonappealable.
(b) Expiration Date.--If all the conditions precedent described in
subsection (a) have not been fulfilled to allow the Secretary's
statement of findings to be published in the Federal Register by
October 31, 2030--
(1) the agreement and this Act, including waivers and
releases of claims described in those documents, shall no
longer be effective;
(2) any funds that have been appropriated pursuant to section
7 but not expended, including any investment earnings on funds
that have been appropriated pursuant to such section, shall
immediately revert to the general fund of the Treasury; and
(3) any funds contributed by the State pursuant to subsection
(c) of section 7 but not expended shall be returned immediately
to the State.
(c) Extension.--The expiration date set forth in subsection (b) may
be extended if the Navajo Nation, the State, and the United States
(acting through the Secretary) agree that an extension is reasonably
necessary.
SEC. 9. WAIVERS AND RELEASES.
(a) In General.--
(1) Waiver and release of claims by the nation and the united
states acting in its capacity as trustee for the nation.--
Subject to the retention of rights set forth in subsection (c),
in return for confirmation of the Navajo water rights and other
benefits set forth in the agreement and this Act, the Nation,
on behalf of itself and the members of the Nation (other than
members in their capacity as allottees), and the United States,
acting as trustee for the Nation and members of the Nation
(other than members in their capacity as allottees), are
authorized and directed to execute a waiver and release of--
(A) all claims for water rights within Utah based on
any and all legal theories that the Navajo Nation or
the United States acting in its trust capacity for the
Nation, asserted, or could have asserted, at any time
in any proceeding, including to the general stream
adjudication, up to and including the enforceability
date, except to the extent that such rights are
recognized in the agreement and this Act; and
(B) all claims for damages, losses, or injuries to
water rights or claims of interference with, diversion,
or taking of water rights (including claims for injury
to lands resulting from such damages, losses, injuries,
interference with, diversion, or taking of water
rights) within Utah against the State, or any person,
entity, corporation, or municipality, that accrued at
any time up to and including the enforceability date.
(b) Claims by the Navajo Nation Against the United States.--The
Navajo Nation, on behalf of itself (including in its capacity as
allottee) and its members (other than members in their capacity as
allottees), shall execute a waiver and release of--
(1) all claims the Navajo Nation may have against the United
States relating in any manner to claims for water rights in, or
water of, Utah that the United States acting in its trust
capacity for the Nation asserted, or could have asserted, in
any proceeding, including the general stream adjudication;
(2) all claims the Navajo Nation may have against the United
States relating in any manner to damages, losses, or injuries
to water, water rights, land, or other resources due to loss of
water or water rights (including damages, losses, or injuries
to hunting, fishing, gathering, or cultural rights due to loss
of water or water rights; claims relating to interference with,
diversion, or taking of water; or claims relating to failure to
protect, acquire, replace, or develop water or water rights)
within Utah that first accrued at any time up to and including
the enforceability date;
(3) all claims the Nation may have against the United States
relating in any manner to the litigation of claims relating to
the Nation's water rights in proceedings in Utah; and
(4) all claims the Nation may have against the United States
relating in any manner to the negotiation, execution, or
adoption of the agreement or this Act.
(c) Reservation of Rights and Retention of Claims by the Navajo
Nation and the United States.--Notwithstanding the waivers and releases
authorized in this Act, the Navajo Nation, and the United States acting
in its trust capacity for the Nation, retain--
(1) all claims for injuries to and the enforcement of the
agreement and the final or interlocutory decree entered in the
general stream adjudication, through such legal and equitable
remedies as may be available in the decree court or the Federal
District Court for the District of Utah;
(2) all rights to use and protect water rights acquired after
the enforceability date;
(3) all claims relating to activities affecting the quality
of water, including any claims under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
(42 U.S.C. 9601 et seq. (including claims for damages to
natural resources)), the Safe Drinking Water Act (42 U.S.C.
300f et seq.), and the Federal Water Pollution Control Act (33
U.S.C. 1251 et seq.), the regulations implementing those Acts,
and the common law;
(4) all claims for water rights, and claims for injury to
water rights, in states other than the State of Utah;
(5) all claims, including environmental claims, under any
laws (including regulations and common law) relating to human
health, safety, or the environment; and
(6) all rights, remedies, privileges, immunities, and powers
not specifically waived and released pursuant to the agreement
and this Act.
(d) Effect.--Nothing in the agreement or this Act--
(1) affects the ability of the United States acting in its
sovereign capacity to take actions authorized by law, including
any laws relating to health, safety, or the environment,
including the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et
seq.), the Safe Drinking Water Act (42 U.S.C. 300f et seq.),
the Federal Water Pollution Control Act (33 U.S.C. 1251 et
seq.), the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.),
and the regulations implementing those laws;
(2) affects the ability of the United States to take actions
in its capacity as trustee for any other Indian Tribe or
allottee;
(3) confers jurisdiction on any State court to--
(A) interpret Federal law regarding health, safety,
or the environment or determine the duties of the
United States or other parties pursuant to such Federal
law; and
(B) conduct judicial review of Federal agency action;
or
(4) modifies, conflicts with, preempts, or otherwise
affects--
(A) the Boulder Canyon Project Act (43 U.S.C. 617 et
seq.);
(B) the Boulder Canyon Project Adjustment Act (43
U.S.C. 618 et seq.);
(C) the Act of April 11, 1956 (commonly known as the
``Colorado River Storage Project Act'') (43 U.S.C. 620
et seq.);
(D) the Colorado River Basin Project Act (43 U.S.C.
1501 et seq.);
(E) the Treaty between the United States of America
and Mexico respecting utilization of waters of the
Colorado and Tijuana Rivers and of the Rio Grande,
signed at Washington February 3, 1944 (59 Stat. 1219);
(F) the Colorado River Compact of 1922, as approved
by the Presidential Proclamation of June 25, 1929 (46
Stat. 3000); and
(G) the Upper Colorado River Basin Compact as
consented to by the Act of April 6, 1949 (63 Stat. 31,
chapter 48).
(e) Tolling of Claims.--
(1) In general.--Each applicable period of limitation and
time-based equitable defense relating to a claim waived by the
Navajo Nation described in this section shall be tolled for the
period beginning on the date of enactment of this Act and
ending on the enforceability date.
(2) Effect of subsection.--Nothing in this subsection revives
any claim or tolls any period of limitation or time-based
equitable defense that expired before the date of enactment of
this Act.
(3) Limitation.--Nothing in this section precludes the
tolling of any period of limitations or any time-based
equitable defense under any other applicable law.
SEC. 10. MISCELLANEOUS PROVISIONS.
(a) Precedent.--Nothing in this Act establishes any standard for the
quantification or litigation of Federal reserved water rights or any
other Indian water claims of any other Indian Tribe in any other
judicial or administrative proceeding.
(b) Other Indian Tribes.--Nothing in the agreement or this Act shall
be construed in any way to quantify or otherwise adversely affect the
water rights, claims, or entitlements to water of any Indian Tribe,
band, or community, other than the Navajo Nation.
SEC. 11. RELATION TO ALLOTTEES.
(a) No Effect on Claims of Allottees.--Nothing in this Act or the
agreement shall affect the rights or claims of allottees, or the United
States, acting in its capacity as trustee for or on behalf of
allottees, for water rights or damages related to lands allotted by the
United States to allottees, except as provided in section 5(a)(2).
(b) Relationship of Decree to Allottees.--Allottees, or the United
States, acting in its capacity as trustee for allottees, are not bound
by any decree entered in the general stream adjudication confirming the
Navajo water rights and shall not be precluded from making claims to
water rights in the general stream adjudication. Allottees, or the
United States, acting in its capacity as trustee for allottees, may
make claims and such claims may be adjudicated as individual water
rights in the general stream adjudication.
SEC. 12. ANTIDEFICIENCY.
The United States shall not be liable for any failure to carry out
any obligation or activity authorized by this Act (including any
obligation or activity under the agreement) if adequate appropriations
are not provided expressly by Congress to carry out the purposes of
this Act.
PURPOSE OF THE BILL
The purpose of H.R. 644 is to ratify and modify the Navajo
Utah Water Rights Settlement Agreement negotiated between the
State of Utah, the Navajo Nation, and the United States.
BACKGROUND AND NEED FOR LEGISLATION
The Navajo Nation Reservation consists of approximately
26,600 square miles in Arizona, New Mexico, and Utah. According
to the Department of the Interior, approximately 1.6 percent of
the total Navajo Nation membership reside within the Utah
portion of the Navajo Reservation, or 5,029 of the Navajo
Nation's current total membership of 300,048.\1\ H.R. 644 would
ratify an Indian water rights settlement agreement for the Utah
portion of the Navajo Reservation, recognizing a reserved water
right for the Navajo Nation totaling 81,500 acre-feet of
depletion per year.\2\ H.R. 644 would also authorize $198
million for a water development fund to be transferred to the
Navajo Nation approximately four to five fiscal years following
bill enactment for water-related expenses.\3\ The majority of
these funds would be used for the eventual completion of a
regional water supply project that is intended to serve as the
primary project for meeting the water needs of the Utah portion
of the Navajo Reservation.\4\ H.R. 644 would also authorize $11
million for an operation and maintenance fund to pay for the
initial operation and maintenance costs of projects constructed
through the use of the water development fund. An additional $1
million would be authorized for a survey of existing water uses
on the Utah portion of the Navajo Reservation to fulfill a
requirement for judicial approval of the settlement agreement
in Utah state court.
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\1\Hearing on H.R. 644, H.R. 2459, and H.R. 3292 Before the
Subcomm. on Water, Oceans, and Wildlife of 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://naturalresources.house.gov/imo/media/doc/
Mikkelsen%20Testimony%20WOW%20Leg%20Hrg %2006.26.19.pdf).
\2\Letter from Alan Mikkelsen, Senior Advisor to the Secretary,
Water and Western Resource Issues, U.S. Department of the Interior, and
Stephen E. Boyd, Assistant Attorney General, Office of Legislative
Affairs, U.S. Department of Justice, to Rep. Rob Bishop, Chairman of
the United States House Committee on Natural Resources for the 115th
Congress (Sept. 7, 2018).
\3\Congressional Budget Office, Cost Estimate for S. 1207, Navajo
Utah Water Rights Settlement Act of 2019, as ordered reported by the
Senate Committee on Indian Affairs on May 15, 2019 (June 19, 2019).
\4\Hearing on H.R. 644, H.R. 2459, and H.R. 3292 Before the H.
Comm. on Nat. Res., Subcommittee on Water, Oceans, and Wildlife, 116th
Cong. (2019) (not printed), (written statement of Jonathan Nez,
President of the Navajo Nation), https://naturalresources.house.gov/
imo/media/doc/Nez%20Testimony%20WOW%20Leg%20Hrg%2006.26.19.pdf.
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The COVID-19 outbreak on the Navajo Nation has highlighted
the need for a reliable water supply on the Navajo Indian
Reservation. While H.R. 644 would help address long-term water
supply needs on a segment of the Reservation in Utah, the
Committee believes that more immediate assistance is needed for
the Navajo Nation and other Tribal Nations to address the
COVID-19 outbreaks that have disproportionally impacted Indian
Country. H.R. 644 would not provide funding to the Navajo
Nation for water project construction in Utah for several
years. According to the Congressional Budget Office, settlement
funds are not expected to be transferred to the Navajo Nation
until approximately four to five years after bill enactment
given that the settlement agreement requires several conditions
to be met before congressionally authorized funds can be
transferred, including the completion of certain court
proceedings needed to confirm the Navajo Nation's water rights.
The bill authorizes funds to be transferred to the Navajo
Nation as late as 2030,\5\ and the regional water project
contemplated under H.R. 644 has not yet completed its design
stage. Furthermore, according to the Navajo Nation, ongoing
negotiations for the settlement of the Navajo Nation's water
rights in Arizona may require further changes to the project's
design and future construction timeline.\6\ Given the lengthy
funding timeline under H.R. 644, the federal government must
urgently provide significant federal funding and resources
apart from H.R. 644 to help meet water supply needs during the
pandemic.
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\5\See Sec. 8 of H.R. 644.
\6\Navajo Nation/State of Utah Water Rights Settlement Projects,
White Paper Prepared by Navajo Nation Department of Water Resources
(June 6, 2014).
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In order to allow current non-Indian water uses in Utah to
continue unimpaired, the settlement ratified by H.R. 644 also
agrees to subordinate the Navajo Nation's reserved water right
to all perfected non-tribal water rights as of the date the
settlement is signed. Indian reserved water rights were first
recognized by the Supreme Court in Winters v. United States in
1908.\7\ 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. Under the
Winters decision and the western water rights system of prior
appropriation, tribes also typically have water rights that are
senior in priority to non-tribal water rights holders.\8\
Without Indian water rights settlements, tribes could
significantly disrupt existing water uses across the drought-
prone western states by fully litigating their water rights.
H.R. 644 provides water supply certainty for existing non-
tribal water users within Utah by approving a water sharing
agreement in which the Navajo Nation agrees to subordinate its
reserved water rights in Utah to existing non-tribal water
users.
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\7\207 U.S. 564 (1908).
\8\Charles V. Stern, Cong. Research Serv., R44148, Indian Water
Rights Settlements (Updated May 22, 2020).
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COMMITTEE ACTION
H.R. 644 was introduced on January 17, 2019, by Ranking
Member Rob Bishop (R-UT). The bill was referred solely to the
Committee on Natural Resources, and within the Committee to the
Subcommittee on Water, Oceans, and Wildlife. On June 26, 2019,
the Subcommittee held a hearing on the bill. On February 12,
2020, the Natural Resources Committee met to consider the bill.
The Subcommittee was discharged by unanimous consent. Ranking
Member Bishop offered an amendment in the nature of a
substitute, which was agreed to by unanimous consent. No
additional amendments were offered, and the bill, as amended,
was adopted and ordered favorably reported to the House of
Representatives by unanimous consent.
On July 1, 2020, the House of Representatives passed H.R.
2, the Moving Forward Act, which included the text of H.R.
644.\9\
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\9\H.R. 2, 116th Cong. (as passed by and engrossed in the House,
July 1, 2020).
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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. 644: legislative hearing by the Subcommittee on
Water, Oceans, and Wildlife held on June 26, 2019.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
Provides the short title of the bill, the ``Navajo Utah
Water Rights Settlement Act of 2019.''
Section 2. Purposes
Establishes the purposes of the Act to authorize, ratify,
and confirm the Navajo Nation's settlement with the State of
Utah for all water rights claims in that state.
Section 3. Definitions
Defines terms and parties referenced in the Act.
Section 4. Ratification of agreement
Issues Congressional approval and ratification of the
Navajo Utah Water Rights Settlement Agreement. Directs the
Secretary of the Interior to execute the agreement and comply
with applicable environmental laws and regulations.
Section 5. Navajo water rights
Confirms the Navajo Nation's water rights in Utah at 81,500
acre-feet of water per year, to be held in trust by the United
States and not subject to forfeiture or abandonment. Depletions
resulting from water use on an allotment or the Reservation
shall be counted as a depletion by the Navajo Nation. The
Navajo Nation shall have the authority to allocate, distribute,
and lease its water rights for any use on the Reservation. The
Navajo Nation may also allocate, distribute, and lease those
water rights for off-Reservation use. The Navajo Nation is
prohibited from objecting in the general stream adjudication or
any other applicable forum to the quantification of a water
right for reasonable domestic and stock water uses on an
allotment.
Section 6. Navajo trust accounts
Establishes the Navajo Utah Settlement Trust Fund to be
managed, invested, and distributed by the Secretary of the
Interior. Establishes two accounts within the Trust Fund: the
Navajo Water Development Projects Account and the Navajo OM&R
(Operation, Maintenance, and Replacement) Account. The Navajo
Nation may withdraw funds from the Trust Fund upon approval
from the Secretary, subject to certain requirements. The Navajo
Nation shall submit annual expenditure reports describing the
use of withdrawals.
Section 7. Authorization of appropriations
Authorizes $198,300,000 for deposit in the Navajo Water
Development Projects Account and $11,100,000 for deposit in the
Navajo OM&R Account. Separately authorizes $1,000,000 for non-
trust funds to assist the United States with costs associated
with the implementation of the Act. The State of Utah shall
contribute $8,000,000 for deposit into the Navajo Water
Development Projects Account.
Section 8. Conditions precedent
Establishes that the waivers and releases in this Act
become effective after the Secretary publishes a notice in the
Federal Register stating that the Settlement Agreement has been
executed by the parties, Congress has fully appropriated funds
authorized under Section 7, the court has entered a final
decree confirming the Navajo water rights, and certain other
conditions have been met. If all conditions have not been met
to allow the publication of the Secretary's notice by October
31, 2030, the Settlement Agreement and the Act shall no longer
be effective. This expiration date may be extended upon
agreement from the Navajo Nation, the State of Utah, and the
Secretary of the Interior.
Section 9. Waivers and releases
Enumerates the waivers and releases required for the
settlement to take effect. Lists the rights reserved and
retained by the Navajo Nation and the United States.
Section 10. Miscellaneous provisions
States that the Act does not establish precedent regarding
the water rights, claims, or entitlements to water for any
other Indian Tribe. The Act shall not quantify or adversely
affect the water rights of any tribe other than the Navajo
Nation.
Section 11. Relation to allottees
Clarifies that nothing in this Act or the Settlement
Agreement affects the rights or claims of allottees, or the
United States acting in its capacity as trustee for or on
behalf of allottees, for water rights or damages related to
lands allotted by the United States to allottees.
Section 12. Antideficiency
States that the United States shall not be liable for
failure to meet the requirements of the Act if adequate
appropriations are not provided by Congress.
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) of rule XIII
of the Rules of the House of Representatives and section 308(a)
of the Congressional Budget Act of 1974 and with respect to
requirements of clause (3)(c)(3) of rule XIII of the Rules of
the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has requested
but not received a cost estimate for this bill from the
Director of Congressional Budget Office. The Committee adopts
as its own cost estimate the forthcoming cost estimate of the
Director of the Congressional Budget Office, should such cost
estimate be made available before House passage of the bill.
The Committee has requested but not received from the
Director of the Congressional Budget Office a statement as to
whether this bill contains any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
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 ratify and modify the Navajo
Utah Water Rights Settlement Agreement negotiated between the
State of Utah, the Navajo Nation, and the United States.
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
An estimate of Federal mandates prepared by the Director of
the Congressional Budget Office pursuant to section 423 of the
Unfunded Mandates Reform Act was not made available to the
Committee in time for the filing of this report. The Chair of
the Committee shall cause such estimate to be printed in the
Congressional Record upon its receipt by the Committee.
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
If enacted, this bill would make no changes to existing
law.
ADDITIONAL VIEWS
Settlements, if crafted correctly, can provide relief from
burdensome legal obligations and benefit tribes, States, and
American taxpayers. That is why under my tenure as Chairman of
this Committee, we instituted a new protocol for reviewing
Indian water rights settlements.
This protocol required the Administration to convey support
for the settlement and provide a copy of the settlement and the
proposed authorizing legislation, including federal spending
levels and claims being resolved, to the Committee.
Under this protocol, Congress approved three Indian water
rights settlements and authorized funding to implement them.
These settlements were a win for the tribes, a win for the
States, and a win for the taxpayers.
The Navajo Utah Water Rights Settlement Act of 2019, meets
these requirements. This bill would approve a water rights
settlement between the Navajo Tribe, the State of Utah and the
federal government. This settlement is complete, and has the
support of the Tribe, State, and Administration.
Importantly, H.R. 644 does not leave the door open to
potential issues, such as project-based settlements which can
run out of money before the promised project is complete. As a
fund-based settlement, this legislation ensures the Navajo
Nation has the flexibility it needs to meet its future water
needs while protecting the American taxpayer. For these
reasons, I support H.R. 644 as reported by the Committee on
Natural Resources.
Rob Bishop.
[all]