Senate Report 118-241 - TECHNICAL CORRECTIONS TO THE NORTHWESTERN NEW MEXICO RURAL WATER PROJECTS ACT, TAOS PUBLO INDIAN WATER RIGHTS SETTLEMENT ACT, AND AAMODT LITIGATION SETTLEMENT ACT

[Senate Report 118-241]
[From the U.S. Government Publishing Office]

Calendar No. 559

118th Congress} { Report
SENATE
2d Session } { 118-241

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

TECHNICAL CORRECTIONS TO THE NORTHWESTERN NEW MEXICO RURAL WATER
PROJECTS ACT, TAOS PUBLO INDIAN WATER RIGHTS SETTLEMENT ACT, AND AAMODT
LITIGATION SETTLEMENT ACT

_______

November 12, 2024.--Ordered to be printed

_______

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

R E P O R T

[To accompany S. 3406]

[Including cost estimate of the Congressional Budget Office]

The Committee on Indian Affairs, to which was referred the
bill (S. 3406) to amend the Omnibus Public Land Management Act
of 2009 to make a technical correction to the Navajo Nation
Water Resources Development Trust Fund, to amend the Claims
Resolution Act of 2010 to make technical corrections to the
Taos Pueblo Water Development Fund and Aamodt Settlement
Pueblos' Fund, and for other purposes, having considered the
same, reports favorably thereon without amendment and
recommends that the bill do pass.

PURPOSE

S. 3406 would authorize $18.467 million in specified
interest payments into three Indian water rights settlement
trust funds from previously enacted and ratified Indian water
rights settlements: the Navajo Nation Water Resources
Development Fund, Taos Pueblo Water Development Fund, and
Aamodt Settlement Pueblos' Fund.

BACKGROUND AND NEED

Between 2009 and 2010, Congress passed legislation enacting
five Indian water rights settlements--the Duck Valley
Settlement,\1\ the Crow Settlement,\2\ the Taos Pueblo
Settlement,\3\ the Aamodt Settlement,\4\ and the Navajo-Gallup
Settlement\5\--each with a provision prohibiting investment of
funding until an enforceability date was reached. The
Department of the Interior testified that it is uncommon for
Indian water rights settlement legislation to include such
provisions, and committed to supporting legislation to address
this limitation in each of the affected water settlements.\6\
S. 3406 addresses three of the five Indian water settlements
affected by this investment limitation.\7\
---------------------------------------------------------------------------
\1\Pub. L. No. 111-11, 123 Stat. 1405 (2009). S. 950, Technical
Correction to the Shoshone-Paiute Tribes of the Duck Valley Reservation
Water Rights Settlement Act of 2023, introduced by Senator Cortez
Masto, proposes an interest fix for the Shoshone-Paiute Tribes Water
Rights Development Fund authorized by the water rights settlement
agreement for the Shoshone-Paiute Tribes of the Duck Valley Reservation
and enacted as part of the Omnibus Public Land Management Act of 2009.
The Committee ordered reported, and the Senate passed, S. 950. The bill
is currently pending action in the House.
\2\Pub. L. No. 111-291, Sec. 401, 124 Stat. 3097 (2010).
\3\Pub. L. No. 111-291, Sec. 501, 124 Stat. 3122 (2010).
\4\Pub. L. No. 111-291, Sec. 601, 124 Stat. 3134 (2010).
\5\Pub. L. No. 111-11, Sec. 10601, 123 Stat. 1379 (2009).
\6\Opportunities and Challenges for Improving Public Safety in
Tribal Communities: Hearing Before the S. Comm. on Indian Affs., 117th
Cong. (2021) (testimony of The Honorable Bryan Newland, Assistant
Secretary-Indian Affairs), https://www.congress.gov/event/117th-
congress/senate-event/330642/text.
\7\Similar legislation (S. 950) also introduced in the 118th
Congress would address this interest-related limitation for the
Shoshone-Paiute Tribes of the Duck Valley Reservation by authorizing
appropriation of $5.125 million for the Shoshone-Paiute Tribes Water
Rights Development Fund, which was established in 2009 pursuant to the
Shoshone-Paiute Tribes of the Duck Valley Reservation Water Rights
Settlement Act. Legislation has not been introduced to authorize a
similar technical correction to the Crow Tribe Water Rights Settlement
Act of 2010, either in the 118th Congress or in previous Congresses.
---------------------------------------------------------------------------
Navajo Nation. In 2009, Congress passed the Omnibus Public
Land Management Act of 2009,\8\ which included the Northwestern
New Mexico Rural Water Projects Act\9\ to ratify the Navajo-San
Juan River Water Rights Settlement Agreement and settle the
Navajo Nation's claims to water rights in the San Juan River
Basin in New Mexico. This law established the Navajo Nation
Water Resources Development Fund to construct the Navajo-Gallup
Water Supply Project in Northwestern New Mexico, infrastructure
designed to deliver piped water to approximately 250,000 people
by 2040.
---------------------------------------------------------------------------
\8\Pub. L. No. 111-11, 123 Stat. 991 (2009).
\9\Pub. L. No. 111-11, Sec. 10301, 123 Stat. 1367 (2009).
---------------------------------------------------------------------------
Taos Pueblo. In 2010, Congress passed the Claims Resolution
Act of 2010,\10\ which included the Taos Pueblo Indian Water
Rights Settlement Act\11\ to ratify the Taos Pueblo Water
Rights Settlement Agreement and settle Taos Pueblo's claims to
water rights in the Rio Hondo and Rio Pueblo de Taos Stream
Systems in New Mexico. This law established the Taos Pueblo
Water Development Fund to carry out the purposes of the Act and
settlement agreement.
---------------------------------------------------------------------------
\10\Pub. L. No. 111-291, 124 Stat. 3064 (2010).
\11\Pub. L. No. 111-291, Sec. 501, 124 Stat. 3122 (2010).
---------------------------------------------------------------------------
Nambe, Pojoaque, San Ildefonso, and Tesuque Pueblos. The
Claims Resolution Act of 2010 included the Aamodt Litigation
Settlement Act\12\ to ratify the Aamodt Water Rights Settlement
Agreement and settle the Pueblos of Nambe, Pojoaque, San
Ildefonso, and Tesuque's claims to water rights in the Pojoaque
River Stream System in New Mexico. This law established the
Aamodt Settlement Pueblos' Fund for the benefit of the four
Pueblos to carry out the purposes of the Act and settlement
agreement.
---------------------------------------------------------------------------
\12\Pub. L. No. 111-291, Sec. 601, 124 Stat. 3134 (2010).
---------------------------------------------------------------------------
Both the Omnibus Public Land Management Act of 2009 and the
Claims Resolution Act of 2010 were intended to further develop
water resources infrastructure for the Navajo Nation, Nambe
Pueblo, Pojoaque Pueblo, San Ildefonso Pueblo, Tesuque Pueblo,
and Taos Pueblo pursuant to their ratified water rights
settlements. Unlike other Indian water rights settlements,
however, these two Acts prohibited investment of settlement
funds prior to their respective enforcement dates. As a result,
the six Tribes benefitting from three water settlements were
denied millions of dollars of interest that could have been
earned if the funds were invested as they are typically in
other settlements. The amounts to be deposited in the three
trust fund accounts represent the unpaid interest that would
have accrued if interest accrual were permitted on the Tribes'
water settlement trust funds between the dates these funds were
appropriated and the settlement enforcement dates, or another
specified date. The funding authorized in S. 3406 will provide
the Tribes with additional resources to support water
infrastructure and uses authorized by their respective water
rights settlements.

SUMMARY OF S. 3406 AS ORDERED REPORTED

S. 3406 authorizes the appropriation of $6.358 million to
the Navajo Nation Water Resources Development Fund, $7.794
million to the Taos Pueblo Water Development Fund, and $4.315
million to the Aamodt Settlement Pueblo's Fund.

Section-by-Section Analysis of S. 3406 as Ordered Reported

Section 1--Short title

This section sets forth the short title as the ``Technical
Corrections to the Northwestern New Mexico Rural Water Projects
Act, Taos Pueblo Indian Water Rights Settlement Act, and Aamodt
Litigation Settlement Act.''

Section 2--Authorization of payment of adjusted interest on the Navajo
Nation Water Resources Development Trust Fund

This section would amend the Omnibus Public Land Management
Act of 2009 to authorize the appropriation of $6.358 million to
be deposited into the Navajo Nation Water Resources Development
Fund, commensurate with the Tribe's earned interest.

Section 3--Authorization of payment of adjusted interest on the Taos
Pueblo Water Development Fund

This section would amend the Claims Resolution Act of 2010
to authorize the appropriation of $7.794 million into the Taos
Pueblo Water Development Fund, commensurate with the Tribe's
earned interest.

Section 4--Authorization of payment of adjusted interest on the Aamodt
Settlement Pueblos' Fund

This section would amend the Claims Resolution Act of 2010
to authorize the appropriation of $4.315 million into the
Aamodt Settlement Pueblos' Fund, commensurate with the Tribes'
earned interest.

Section 5--Disclaimer

Section 5(a) clarifies that nothing in the Act impacts the
previous satisfaction of conditions precedent or Secretarial
findings for the Taos Pueblo Indian Water Rights Settlement Act
and the Taos Pueblo Water Rights Settlement Agreement.
Section 5(b) clarifies that nothing in the Act impacts the
previous satisfaction of the requirements of the conditions
precedent for the Aamodt Litigation Settlement Act and the
Aamodt Water Rights Settlement Agreement.

LEGISLATIVE HISTORY

On December 5, 2023, Senator Lujan (D-NM) and Senator
Heinrich (D-NM) introduced S. 3406, the Technical Corrections
to the Northwestern New Mexico Rural Water Projects Act, Taos
Pueblo Indian Water Rights Settlement Act, and Aamodt
Litigation Settlement Act. On the same day, the Senate referred
the bill to the Committee on Indian Affairs. On July 10, 2024,
the Committee held a legislative hearing to receive testimony
on the bill. The Department of the Interior testified in
support of the bill. On July 25, 2024, the Committee met at a
duly convened Business Meeting and ordered S. 3406 reported
favorably, without amendment.
On December 5, 2023, Representatives Leger Fernandez (D-NM)
and Stansbury (D-NM) introduced an identical companion bill,
H.R. 6599. On the same day, the House of Representatives
referred H.R. 6599 to the Committee on Natural Resources. On
July 17, 2024, the Committee on Natural Resources referred the
bill to the Subcommittee on Water, Wildlife, and Fisheries. On
July 23, 2024, the Subcommittee on Water, Wildlife, and
Fisheries held a legislative hearing to receive testimony on
H.R. 6599. To date, the House of Representatives has taken no
further action on the bill.
117th Congress. On November 14, 2022, Representative Leger
Fernandez (D-NM) introduced H.R. 9293, To amend the Omnibus
Public Land Management Act of 2009 to make a technical
correction to the Navajo Nation Water Resources Development
Trust Fund, and for other purposes, and H.R. 9294, To amend the
Claims Resolution Act to make a technical correction to the
Taos Pueblo Water Development Fund and the Aamodt Settlement
Pueblos' Fund, and for other purposes. The House of
Representatives referred both bills to the Committee on Natural
Resources. The House of Representatives took no further action
on either bill in the 117th Congress.

COST AND BUDGETARY CONSIDERATIONS

Bill summary: S. 3406 would amend the Omnibus Public Land
Management Act of 2009 to authorize the appropriation of
specific amounts totaling $18 million for three trust funds
that are credited with interest. Specifically, the bill would
authorize the appropriation of:
$6 million for the Navajo Nation Water
Resources Development Trust Fund,
$8 million for the Taos Pueblo Water
Development Fund, and
$4 million for the Aamodt Settlement
Pueblos' Fund.
Estimated Federal cost: The estimated budgetary effect of
S. 3406 is shown in Table 1. The costs of the legislation fall
within budget function 300 (natural resources and environment).

TABLE 1.--ESTIMATED BUDGETARY EFFECTS OF S. 3406
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, millions of dollars--
-----------------------------------------------------------------------------------------------------
2025 2026 2027 2028 2029 2030 2031 2032 2033 2034 2025-2029 2025-2034
--------------------------------------------------------------------------------------------------------------------------------------------------------
INCREASES IN SPENDING SUBJECT TO APPROPRIATION

Authorization..................................... 18 0 0 0 0 0 0 0 0 0 18 18
Estimated Outlays................................. 3 4 5 3 2 1 0 0 0 0 17 18

INCREASES IN DIRECT SPENDING

Estimated Budget Authority........................ * * 2 1 1 * 2 1 1 1 4 9
Estimated Outlays................................. * * * 1 2 * 1 1 1 1 3 7
--------------------------------------------------------------------------------------------------------------------------------------------------------
* = between zero and $500,000.

Basis of estimate: For this estimate, CBO assumes that the
bill will be enacted before the end of calendar year 2024 and
that the authorized amounts will be appropriated in 2025.
Spending subject to appropriation: The bill would authorize
the appropriation of specific amounts to three trust funds.
Based on historical spending patterns, CBO estimates that
implementing S. 3406 would cost $17 million over the 2025-2029
period and $1 million after 2029, assuming appropriation of the
authorized amounts.
Direct spending: Any appropriations to the three trust
funds would be invested in Treasury obligations, including
those that would be authorized by S. 3406. Those trust funds
are credited with interest based on the value of the Treasury
obligations they hold. Because that credited interest can be
spent on the trust funds' activities without further
appropriation, that spending is classified as direct spending.
Based on the projection of interest rates that underlie
CBO's baseline, CBO estimates that the trust funds would be
credited with $9 million and subsequently spend $7 million over
the 2025-2034 period.
Pay-As-You-Go considerations: The Statutory Pay-As-You-Go
Act of 2010 establishes budget-reporting and enforcement
procedures for legislation affecting direct spending or
revenues. The net changes in outlays that are subject to those
pay-as-you-go procedures are shown in Table 1.
Increase in long-term net direct spending and deficits: CBO
estimates that enacting S. 3406 would not increase net direct
spending by more than $2.5 billion in any of the four
consecutive 10-year periods beginning in 2035.
CBO estimates that enacting S. 3406 would not increase on-
budget deficits by more than $5 billion in any of the four
consecutive 10-year periods beginning in 2035.
Mandates: The bill contains no intergovernmental or
private-sector mandates as defined in the Unfunded Mandates
Reform Act.
Estimate prepared by: Federal costs: Alaina Rhee; Mandates:
Erich Dvorak.
Estimate reviewed by: Robert Reese, Chief, Natural and
Physical Resources Cost Estimates Unit; Kathleen FitzGerald,
Chief, Public and Private Mandates Unit; H. Samuel Papenfuss,
Deputy Director of Budget Analysis.
Estimate approved by: Phillip L. Swagel, Director,
Congressional Budget Office.

REGULATORY AND PAPERWORK IMPACT STATEMENT

Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee believes that S. 3406, as
reported, will have minimal impact on regulatory or paperwork
requirements.

EXECUTIVE TESTIMONY

Written statement of Jason Freihage, Deputy Assistant
Secretary of Management for Indian Affairs, U.S. Department of
the Interior, before the U.S. Senate Committee on Indian
Affairs, July 10, 2024, follows below:

Good afternoon, Chairman Schatz, Vice Chairman Murkowski,
and members of the Committee. My name is Jason Freihage, and I
am the Deputy Assistant Secretary of Management for Indian
Affairs at the Department of the Interior (Department). Thank
you for the opportunity to present testimony on . . . S. 3406,
``Technical Corrections to the Northwestern New Mexico Rural
Water Projects Act, Taos Pueblo Indian Water Rights Settlement
Act, and Aamodt Litigation Settlement Act,'' . . .
S. 3406, Technical Corrections to the Northwestern New Mexico Rural
Water Projects Act, Taos Pueblo Indian Water Rights Settlement
Act, and Aamodt Litigation Settlement Act
S. 3406 would amend the Omnibus Public Land Management Act
of 2009 and the Claims Resolution Act of 2010 to authorize
funding for deposit into the Navajo Nation Water Resources
Development Trust Fund, the Taos Pueblo Water Development Fund,
and the Aamodt Settlement Pueblos' Fund equivalent to the
amounts that would have accrued to the trust funds if the
Department had the authority to invest the funds upon
appropriation.
In the 111th Congress, four Indian water rights settlements
(the Taos Pueblo Indian Water Rights Settlement Act, Pub. L.
No. 111-291; the Aamodt Litigation Settlement Act, Pub. L. No.
111-291; the Duck Valley settlement, Pub. L. No. 111-11; and
the Crow Tribe Water Rights Settlement Act of 2010, Pub. L. No.
111-291) included provisions authorizing an investment of
monies into the settlement trust funds after the enforceability
date. The enforceability date is effective when the Secretary
finds that all conditions for the full effectiveness and
enforceability of the settlement had occurred and publishes
that finding in the Federal Register. The Northwestern New
Mexico Rural Water Projects Act, Pub. L. No. 111-11, (Navajo
Settlement), also allowed for the investment of monies into the
Navajo Nation Resources Development Trust Fund, only upon a
specified date certain ten years after the enactment date.
These provisions prohibited the Department from investing
trust fund monies before the enforceability date or a date
certain. However, the Department mistakenly started investing
trust fund monies when they were appropriated, which was before
the enforceability date. When the Department discovered this
error, the Department's Solicitor's Office determined that the
interest amounts earned prior to the date that the funds were
authorized to be invested were contrary to the Antideficiency
Act and, in accordance with 31 U.S.C. Sec. 3302, must be
returned to Treasury. The Department then returned all interest
monies accrued prior to the authorized date back to Treasury.
The issue that S. 3406 addresses is a provision in certain
Indian water rights settlements that prohibited investment
until the enforceability date was reached. This provision is
not common in Indian water rights settlements. Similar
provisions appeared in other settlements enacted in 2009-2010,
including the Crow Tribe Water Rights Settlement Act of 2010;
the Taos Pueblo Indian Water Rights Settlement Act; the Aamodt
Litigation Settlement Act; and the Navajo Gallup Water Supply
Project and Navajo Nation Water Rights. In each of these
settlements, funds were inadvertently invested and returned to
Treasury. The Department supported similar legislation to
resolve this issue, and thus supports S. 3406 to correct this
issue for the Northwestern New Mexico Rural Water Projects Act,
the Taos Pueblo Indian Water Rights Settlement Act, and the
Aamodt Litigation Settlement Act.

EXECUTIVE COMMUNICATIONS

The Committee has received no communications from the
Executive Branch regarding S. 3406.

CHANGES IN EXISTING LAW

On February 9, 2023, the Committee unanimously approved a
motion to waive subsection 12 of rule XXVI of the Standing
Rules of the Senate. In the opinion of the Committee, it is
necessary to dispense with subsection 12 of rule XXVI of the
Standing Rules of the Senate to expedite the business of the
Senate.

[all]