[Senate Report 118-263]
[From the U.S. Government Publishing Office]
Calendar No. 665
118th Congress } { Report
SENATE
2nd Session } { 118-263
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A BILL TO APPROVE THE SETTLEMENT OF WATER
RIGHTS CLAIMS OF THE NAVAJO NATION IN THE RIO
SAN JOSE STREAM SYSTEM IN THE STATE OF NEW
MEXICO, AND FOR OTHER PURPOSES
_______
December 4, 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. 4998]
The Committee on Indian Affairs, to which was referred the
bill (S. 4998) to approve the settlement of water rights claims
of the Navajo Nation in the Rio San Jose Stream System in the
State of New Mexico, and for other purposes, having considered
the same, reports favorably thereon without amendment and
recommends that the bill do pass.
PURPOSE
S. 4998 would resolve all outstanding water claims in the
Rio San Jose Basin in New Mexico that could be brought by the
Navajo Nation or by the United States, in its capacity as
trustee for the Navajo Nation, and would achieve finality with
respect to all those claims. The bill would authorize, ratify,
and confirm the June 11, 2024 addendum to the May 13, 2022 Rio
San Jose Stream System Water Rights Local Settlement Agreement
Among the Pueblo of Acoma, the Pueblo of Laguna, the Navajo
Nation, the State of New Mexico, the City of Grants, the
Village of Milan, the Association of Community Ditches of the
Rio San Jose and Nine Individual Acequias and Community
Ditches.
BACKGROUND AND NEED
The Rio Grande Basin spans 335,500 square miles across
Colorado, Texas, New Mexico, and five states in Mexico. The Rio
Grande River flows 1,896 miles from its headwaters in the San
Juan Mountains in Colorado over four Rio Grande sub-basins
(Upper, Middle, Lower, and Pecos) to Mexico. As it flows
through New Mexico across the Middle Rio Grande Basin, the
river continues through three sub-basins: the Rio San Jose, Rio
Puerco, and Rio Salado.
The Navajo Nation Reservation (Reservation) in New Mexico
encompasses 31 Chapters\1\ and is home to approximately 122,000
of the 399,494 total enrolled Tribal members (as of 2021).\2\
Approximately 41,000 acres of land are held in trust for the
Navajo Nation within the Rio San Jose sub-basin and 35,500
acres of land are held in trust within the Rio Puerco sub-
basin.\3\ Nine Chapters are located in the Rio San Jose sub-
basin (Baca/Prewitt, Casamero Lake, Crownpoint, Littlewater,
Mariano Lake, Ramah, Smith Lake, Thoreau, Tohajiilee) and seven
Chapters are located in the Rio Puerco sub-basin (Tohajiilee,
Torreon, Ojo Encino, Pueblo Pintado, Whitehorse Lake,
Counselor, and Littlewater).\4\ Approximately 7,500 Navajo
Nation citizens live in these two sub-basins.\5\
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\1\The Navajo Nation is divided up geographically into five Tribal
agencies, each of which contains local political subdivisions called
Chapters, which are similar in function to counties or municipalities.
Currently, there are 110 Chapters spanning three states, each with its
own local governance organized through a Chapter house and Chapter
officials. Navajo Nation, Off. of Mgmt. & Budget, Organizational Chart
(2024), https://www.omb.navajo-nsn.gov/About-Us/Navajo-Nation-
Organizational-Chart-w-Links.
\2\Arlyssa Becenti, Dine Enrolled Population Increases to 399,494,
Navajo Times, Apr. 26, 2021.
\3\Navajo Nation Rio San Jose Stream System Water Rights Settlement
Act of 2024: Hearing to Receive Testimony on H.R. 8945 Before the House
Nat. Res. Subcomm. on Water, Wildlife and Fisheries, 118th Cong. 2
(2024) (statement of Dr. Buu Nygren, President, Navajo Nation).
\4\Northeastern Arizona Indian Water Rights Settlement Act of 2024:
Hearing to Receive Testimony on S. 4998 Before the S. Comm. on Indian
Affrs., 118th Cong. 2 (2024) (statement of Dr. Buu Nygren, President,
Navajo Nation).
\5\Id.
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The Navajo Nation Chapters in the Rio San Jose and Rio
Puerco sub-basins are primarily reliant on intermittent surface
flows and groundwater supplies. Surface flows are highly
variable throughout the year, making groundwater a critical
resource for water security in the region. However, extensive
groundwater demands by non-Indian water users, combined with
long-term drought conditions and changes in summer monsoons and
winter snowmelt, have reduced the supply of water available to
the Navajo Nation in the Rio San Jose and Rio Puerco sub-
basins.
And while the Navajo Nation has water rights senior to the
majority of non-Indian users in the basins, it is facing water
shortages that impact its ability to provide sustainable water
for its current and future water needs.\6\ The Navajo Nation
seeks funding as part of the proposed settlement to develop its
water resources various uses, including domestic and municipal
purposes for current and future Tribal populations.
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\6\An estimated 23 percent of Tribal residences do not have running
water on the Navajo Nation in New Mexico. Navajo Nation and Committee
staff communication (on file with the Committee); see Richard Tsong-
Taatarii, On the Navajo Nation, a Life Without Water, Searchlight N.M.
(Nov. 29, 2023), https://searchlightnm.org/on-the-navajo-nation-a-life-
without-water (describing the circumstances faced by Tribal residents
on the Navajo Nation in New Mexico who do not have running water in
their homes).
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Legislation (S. 595) is currently pending to resolve the
water rights claims of Acoma and Laguna Pueblos in the Rio San
Jose sub-basin. S. 4998 would approve a conditional settlement
of Navajo Nation claims in the Rio Puerco Basin. If both S. 595
and S. 4998 are enacted, all known Tribal water rights claims
in the Rio San Jose sub-basin would be resolved.
SUMMARY OF S. 4998 AS ORDERED REPORTED
S. 4998 would settle the Navajo Nation's water rights
within the Rio San Jose Basin in New Mexico, and authorize
$223.271 million in mandatory funding, to be indexed, for the
Navajo Nation Rio San Jose Water Rights Settlement Trust Fund
for water-related infrastructure projects. As part of this
funding, S. 4998 would establish two subaccounts within the
trust fund:
the Navajo Nation Water Settlements Account
($200.271 million); and
the Navajo Nation Operations and Maintenance
Account ($23 million).
This funding will support two separate projects to address
water shortages by importing much-needed, high-quality water to
Navajo Nation Chapters in the Rio Puerco and Rio San Jose
Basins. The Rio San Jose Regional Water Supply Project will
import water from the San Juan River through the Navajo Gallup
Water Supply Project, in coordination with the Bureau of
Reclamation. The Tohajiilee Waterline Phase 1 will import water
from the Middle Rio Grande Basin to the Rio Puerco Basin.
The bill would also require the State of New Mexico to
contribute $3 million for the Bluewater Toltec Irrigation
District and Acequia Madre del Ojo del Gallo to carry out the
Agreement, and additional funding, if applicable, to mitigate
impacts to the acequias of Navajo Nation and Pueblo water
development.
SECTION-BY-SECTION ANALYSIS OF S. 4998 AS ORDERED REPORTED
Section 1--Short title; table of contents
Section 1(a) sets forth the short title of the bill as the
``Navajo Nation Rio San Jose Stream System Water Rights
Settlement Act of 2024.''
Section 1(b) sets forth the table of contents.
Section 2--Purposes
This section sets forth the four-fold purpose of the bill
to:
Achieve a fair, equitable, and final
settlement of all water rights claims in the Rio San
Jose Stream System of New Mexico for the Navajo Nation
and the United States as its trustee;
Authorize, ratify, and confirm the Rio San
Jose Stream System Water Rights Local Settlement
Agreement (Agreement) entered into by the Navajo
Nation, the State of New Mexico, and other parties;
Authorize and direct the Secretary of the
Interior to execute and carry out the Agreement; and
Authorize funding to implement the
Agreement.
Section 3--Definitions
This section provides definitions for various terms used
throughout the bill.
Section 4--Ratification of agreement
Section 4(a)-(b) authorizes, ratifies, and confirms the
Agreement and conforming amendments; directs the Secretary of
the Interior to execute the Agreement, including attachments,
and authorizes the Secretary of the Interior to make
modifications consistent with congressional approval
requirements and federal law.
Section 4(c) requires the Secretary of the Interior and the
Navajo Nation to comply with federal environmental laws as
applicable; requires the Secretary of the Interior to evaluate
and be responsible for the Navajo Nation's documentation
related to environmental compliance; affirms that execution of
the Agreement does not constitute a major federal action under
the National Environmental Policy Act; and provides for the
Navajo Nation's costs for environmental compliance activities
to be paid from the Navajo Nation Rio San Jose Water Rights
Settlement Trust Fund, or other sources of funding from the
Navajo Nation, subject to certain conditions.
Section 5--Navajo Nation's water rights
Section 5(a) requires the water rights of the Navajo
Nation, as set out in the Agreement and this bill, to be held
in trust by the United States.
Section 5(b)-(g) protects the water rights of the Navajo
Nation, as set out in the Agreement, from loss through non-use,
forfeiture, or abandonment; ensures allotment rights in the Rio
Puerco Basin or the Rio San Jose Basin are not included;
ensures Indian allottees are not adversely affected by this
bill; and authorizes uses of water rights for the Navajo
Nation, including the allocation, distribution, or lease of
water on and off of Navajo lands for a maximum lease term of 99
years.
Section 5(h) prohibits the permanent alienation or
forfeiture of Navajo Nation water rights quantified in this
bill and the clarifies forbearance of Navajo water rights and
non-stock water rights of certain allotments in the Rio Puerco
Basin and the Rio San Jose Basin as non-use that is not subject
to permanent alienation or forfeiture by the Navajo Nation.
Section 6--Navajo Nation Rio San Jose Settlement Trust Fund
Section 6(a) directs the Secretary to establish an
interest-bearing trust fund, the Navajo Nation Rio San Jose
Water Rights Settlement Trust Fund, to be managed and used by
the Secretary of the Interior to carry out this bill.
Section 6(b) directs the Secretary to establish two
accounts in Navajo Nation Rio San Jose Water Rights Settlement
Trust Fund: (1) the Navajo Nation Water Settlements Account;
and (2) the Navajo Nation Operations and Maintenance Account.
Section 6(c) requires the Secretary of the Interior to
deposit $223.271 million, consisting of the following amounts,
into the Navajo Nation Rio San Jose Water Rights Settlement
Trust Fund under the two authorized accounts: (1) the Navajo
Nation Water Settlements Account ($200.271 million); and (2)
the Navajo Nation Operations and Maintenance Account ($23
million).
Section 6(d) outlines conditions for the management,
investment, and distribution of the Navajo Nation Rio San Jose
Water Rights Settlement Trust Fund, and authorizes the
appropriation of any investment earnings for authorized uses.
Section 6(e) requires the Secretary of the Interior to make
funds deposited in the Navajo Nation Rio San Jose Water Rights
Settlement Trust Fund, including any investment earnings,
available beginning on the enforceability date, with the
exception of $15 million from the Navajo Nation Water Rights
Settlement Account, which, together with any investment
earnings and interest, shall be available upon the date of
deposit for specific planning, compliance, and immediate
purpose uses.
Section 6(f) permits withdrawals from the Navajo Nation Rio
San Jose Water Rights Settlement Trust Fund for certain
specified purposes pursuant to a Tribal management and
expenditure plans submitted by the Navajo Nation and approved
and enforced by the Secretary of the Interior in accordance
with the American Indian Trust Fund Management Reform Act of
1994, provided that the Navajo Nation spend all amounts
withdrawn, including investment earnings, on specified
purposes, and clarifies that the Secretary of the Interior may
carry out judicial and administrative actions as necessary to
enforce an expenditure or management plan.
Section 6(g) clarifies that the Secretary of the Interior's
decision to approve a Tribal management or expenditure plan is
final and not subject to judicial review, except under the
Administrative Procedure Act.
Section 6(h) authorizes two specific uses of the Navajo
Nation Rio San Jose Water Rights Settlement Trust Fund
according to each authorized account: (1) the Navajo Nation
Water Rights Settlement Account for acquiring water rights or
supply; for planning, engineering, constructing, operating, or
repairing water infrastructure for domestic, municipal, or on-
farm uses; for water rights management and administration; for
watershed protection, agriculture, community welfare, economic
development, and implementation costs; and for environmental
compliance; and (2) the Navajo Nation Operations and
Maintenance Account: for operations, maintenance, and
replacement costs of water infrastructure to serve domestic,
commercial, municipal, and industrial water uses.
Section 6(i) limits federal liability for expenditures and
investments of amounts withdrawn from the Navajo Nation Rio San
Jose Water Rights Settlement Trust Fund under Section 6(f).
Section 6(j) requires the Navajo Nation to submit an annual
expenditure report to the Secretary of the Interior regarding
withdrawals from the Navajo Nation Water Settlement Trust Fund
under an approved Tribal management or expenditure plan.
Section 6(k) prohibits per capita distribution of any
portion of the Navajo Nation Rio San Jose Water Rights
Settlement Trust Fund to any member of the Navajo Nation.
Section 6(l) confirms that the Navajo Nation shall retain
title, control, and operation of any project infrastructure
constructed with funds from the Navajo Nation Rio San Jose
Water Rights Settlement Trust Fund.
Section 6(m) clarifies that all operation, maintenance, and
replacement costs of any project infrastructure constructed
with funds from the Navajo Nation Rio San Jose Water Rights
Settlement Trust Fund will be the responsibility of the Navajo
Nation.
Section 7--Funding
Section 7(a) authorizes $223.271 million in mandatory
appropriations, consisting of the following amounts, into the
Navajo Nation Rio San Jose Water Rights Settlement Trust Fund,
under the two authorized accounts: (1) the Navajo Nation Water
Settlements Account ($200.271 million); and (2) the Navajo
Nation Operations and Maintenance Account ($23 million).
Section 7(b) provides for adjustments of the amounts
appropriated under Section 7(a), to be deposited into the
Navajo Nation Rio San Jose Water Rights Settlement Trust Fund,
to address cost fluctuation and market volatility between
October 1, 2021 and the date of deposit.
Section 7(c) requires the State of New Mexico to contribute
$3 million for the Bluewater Toltec Irrigation District and the
Acequia Madre del Ojo del Gallo for purposes described in the
Agreement, and additional funding if applicable under the
Agreement.
Section 8--Enforceability date
This section establishes the enforceability date as the day
on which the Secretary of the Interior publishes a statement of
findings, including enumerated requirements, in the Federal
Register.
Section 9--Waivers and releases of claims
Section 9(a) requires the Navajo Nation and the United
States, acting as trustee for the Navajo Nation (but not Navajo
Nation allottees), to execute waivers and releases of claims
for water rights within the Rio San Jose Basin and clarifies
that such waivers and releases cover issues arising on or
before the enforceability date.
Section 9(b) requires the Navajo Nation to execute waivers
and releases of claims against the United States, including its
agencies and employees, for water rights and injury to water
rights in the Rio San Jose Basin arising before the
enforceability date.
Section 9(c) clarifies that the waivers and releases
described in this section take effect on the enforceability
date.
Section 9(d) reserves the Navajo Nation's and the United
States' right to assert certain claims not expressly waived in
sections 9(a) and 9(b).
Section 9(e) clarifies that nothing in the Agreement or
this bill affects the sovereignty of the United States or the
Navajo Nation; affects their ability to carry out actions
certain environmental laws or associated regulations; affects
the ability of the United States to act as trustee for the
Navajo Nation or any other Tribe or allottee; confers
jurisdiction on any State court; or waives any claim of members
of the Navajo Nation in their individual capacities.
Section 9(f) authorizes the United States to offset $20
million against any judgement against the United States for
water rights claims in the Rio Puerco Basin, or for a Federal
contribution to a future settlement of the Navajo Nation's
water rights in the Rio Puerco Basin.
Section 9(g) provides for tolling of claims and defenses
between the enactment and enforceability dates.
Section 9(h) provides for termination of the Agreement,
expiration of this bill, and return of unexpended funds to the
Federal Government if the Secretary of the Interior's statement
of findings is not issued by July 1, 2030, or a later date
mutually agreed upon by the Navajo Nation and the United States
with reasonable notice to the State of New Mexico.
Section 10--Satisfaction of claims
This section provides that benefits realized under this
bill shall serve as full satisfaction of any claim of the
Navajo Nation against the United States that the Navajo Nation
waives and releases under the bill.
Section 11--Consent of United States to jurisdiction for judicial
review of a Navajo Nation Water Use Permit decision
Section 11(a)-(c) provides consent from the United States,
subject to the Navajo Nation providing its consent consistent
with the Agreement, on the enforceability date for the State of
New Mexico to exercise judicial review of a Navajo Nation Water
Use Permit, and provides for consideration of the Navajo Nation
Water Code and Navajo Water Law in state court proceedings.
Section 12--Miscellaneous provisions
Section 12(a)-(d) affirms that nothing in the bill waives
the United States' sovereign immunity, quantifies or diminishes
land and water rights of other Tribes, affects laws or
regulations in effect prior to enactment regarding pre-
enforcement review of federal environmental enforcement
actions; and provides that the bill controls over the Agreement
in the event of a conflict.
Section 13--Relation to allottees
Section 13(a)-(b) clarifies that nothing in the bill or the
Agreement affects the rights or claims of Navajo allottees, the
United States as trustee for Navajo allottees, or allotments.
Section 14--Expansion of the Navajo-Gallup Water Supply Project Service
Area
Section 14(a)-(c) expands the Service Area of the Navajo-
Gallup Water Supply Project\7\ to Navajo communities in the Rio
San Jose Basin in New Mexico, subject to approval from the
Commissioner of Reclamation.
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\7\The Navajo-Gallup Water Supply Project was authorized by the
Northwestern New Mexico Rural Water Projects Act in Public Law 111-11,
which settled the Navajo Nation's water right claims in the San Juan
River Basin in New Mexico and provided for the construction of a
pipeline, and associated infrastructure, to serve Navajo communities in
New Mexico and Arizona, the City of Gallup, and the southwestern
portion of the Jicarilla Apache Nation. Omnibus Pub. Land Mgmt. Act of
2009, Sec. Sec. 10601 et seq., 10701 et seq., 83, Stat. 991, 1379
(2009). Related legislation would also expand the Service Area to
Navajo communities within the Rio San Jose Basin in New Mexico and the
Navajo community of Lupton, Arizona within the Little Colorado River
Basin in Arizona. S. 1898, 118th Cong. (2024).
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Section 15--Antideficiency
This section clarifies that the United States shall not be
liable for failure to perform if adequate appropriations are
not provided by Congress.
LEGISLATIVE HISTORY
On September 9, 2024, Senator Heinrich (D-NM) and Senator
Lujan (D-NM) introduced S. 4998 the Navajo Nation Rio San Jose
Stream System Water Rights Settlement Act of 2024. The Senate
referred the bill to the Committee on Indian Affairs on the
same day. On September 25, 2024, the Committee held a
legislative hearing to receive testimony on S. 4998. On
November 18, 2024, the Committee met at a duly convened
business meeting and ordered S. 4998 reported favorably,
without amendment.
On July 8, 2024, Representatives Leger Fernandez (D-NM)
introduced H.R. 8945, the Navajo Nation Rio San Jose Stream
System Water Rights Settlement Act of 2024, a companion to the
Senate bill. Representatives Vasquez (D-NM) and Stansbury (D-
NM) joined as cosponsors after introduction. On July 8, 2024,
the bill was referred to the House Committee on Natural
Resources. On July 17, 2024, H.R. 8945 was further referred to
the Subcommittee on Water, Wildlife, and Fisheries. On July 23,
2024, the Subcommittee held a legislative hearing to receive
testimony on H.R. 8945. To date, the House of Representatives
has taken no further action on the bill.
COST AND BUDGETARY CONSIDERATIONS
The cost estimate from the Congressional Budget Office
requested on S. 4998 has not yet been received. Due to time
constraints, the CBO letter will be printed in the
Congressional Record.
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. 4998, as
reported, will have minimal impact on regulatory or paperwork
requirements.
EXECUTIVE TESTIMONY
Written statement of Bryan Newland, Assistant Secretary for
Indian Affairs, U.S. Department of the Interior, before the
U.S. Senate Committee on Indian Affairs, delivered on September
25, 2024, follows below:
Chairman Schatz, Vice Chairman Murkowski, and members of
the Committee. My name is Bryan Newland, and I am the Assistant
Secretary for Indian Affairs at the Department of the Interior
(Department). Thank you for the opportunity to present
testimony on the following bills concerning Indian water rights
settlements . . .
Indian Water Rights Settlements Bills
At the core of the United States' trust and treaty
obligations is our responsibility to ensure that Indian Tribes
have the right to continue to exist in their homelands.
Everyone should understand that water is essential to meet this
obligation. Without access to water in their homelands, Tribes
cannot remain in their homelands, and we cannot fulfill our
most solemn obligation to American Indian and Alaska Native
people.
The Biden Administration recognizes that water is a sacred
and valuable resource for Tribal Nations and that long-standing
water crises continue to undermine public health and economic
development in Indian Country. This Administration strongly
supports the resolution of Indian water rights claims through
negotiated settlements. Indian water settlements help to ensure
that Tribal Nations have safe, reliable water supplies; improve
environmental and health concerns on reservations; enable
economic growth; promote Tribal sovereignty and self-
sufficiency; and help advance the United States' trust
relationship with Tribes. At the same time, water rights
settlements have the potential to end decades of controversy
and contention among Tribal Nations and neighboring communities
and promote cooperation in the management of water resources.
Indian water rights settlements play a pivotal role in this
Administration's commitment to putting equity at the center of
everything we do to improve the lives of everyday people--
including Tribal Nations. We have a clear charge from President
Biden and Secretary Haaland to improve water access and water
quality on Tribal lands. Access to water is fundamental to
human existence, economic development, and the future of
communities--especially Tribal communities.
To that end, the Biden Administration's policy on
negotiated Indian water settlements continues to be based on
the following principles: the United States will participate in
settlements consistent with its legal and moral trust
responsibilities to Tribal Nations; Tribes should receive
equivalent benefits for rights, which they, and the United
States as trustee, may release as part of the settlement;
Tribes should realize value from confirmed water rights
resulting from a settlement; and settlements should contain
appropriate cost-sharing proportionate to the benefits received
by all parties benefiting from the settlement. In addition,
settlements should provide finality and certainty to all
parties involved.
Congressional enactment of these settlements should be
considered within the context of all Tribal priorities and the
availability of all resources. That is why the Administration
encourages Congress to consider mandatory funding for this and
other pending Indian water rights settlements, which was also
requested in the 2025 President's Budget, included in the
enacted Bipartisan Infrastructure Law, and already proposed in
some of the bills we are discussing today.
S. 4998, Navajo Nation Rio San Jose Stream System Water Rights
Settlement Act of 2024
S. 4998, the Navajo Nation Rio San Jose Stream System Water
Rights Settlement Act of 2024, would approve and provide
authorizations to carry out the settlement of water rights
claims of the Navajo Nation in the Rio San Jose River basin in
New Mexico.
I. The Navajo Nation and Rio San Jose Basin Water Resources
The Navajo Nation has more than 400,000 enrolled members,
of which about 122,000 live in New Mexico. The Navajo Nation
consists of five agencies, further subdivided into 110
chapters. The Eastern Navajo Agency, headquartered in
Crownpoint, encompasses 31 chapters within Western New Mexico
as well as the satellite reservation areas of To'hajiillee and
Alamo. Four of the chapters, with a total estimated population
of 3,810 Tribal members, are within the Rio San Jose Basin.
These are the chapters of Smith Lake, Casamero Lake, Thoreau
and Baca/Prewitt. In addition, the satellite reservation of
To'hajiilee, within the Rio Puerco basin, has an estimated
1,424 tribal members.
The Navajo Nation is located in an arid region of New
Mexico and the chapters in the Rio San Jose Basin are primarily
reliant on intermittent surface flows and groundwater supplies.
Drought is a common occurrence that has impacted, and continues
to impact, the Tribe. The supply of water available to the
Navajo Nation has been reduced over time from extensive
groundwater demands by non-Indian water users. An estimated 30
percent of residences do not have running water. While the
Navajo Nation has water rights senior to the majority of non-
Indian users in the basin, it is facing water shortages that
impact its ability to provide sustainable water for its current
and future water needs. Recent effects of global warming and
climate change are exacerbating these effects and surface water
supplies are dwindling. The Navajo Nation seeks funding as part
of the proposed settlement to develop its water resources for
various uses, including domestic and municipal purposes for
current and future Tribal populations.
II. Proposed Navajo Rio San Jose Settlement Legislation
The Settlement would resolve all outstanding water claims
in the Rio San Jose basin in New Mexico that could be brought
by the Navajo Nation or by the United States, in its capacity
as trustee for the Nation, and would achieve finality with
respect to all those claims. Legislation (S. 595) is currently
pending to resolve the water rights claims of Acoma and Laguna
in the Rio San Jose basin. If both S. 595 and S. 4998 are
enacted, all Tribal water rights claims in the Rio San Jose
basin would be resolved. S. 4998 would also approve a
conditional settlement of Navajo Nation claims in the Rio
Puerco basin.
S. 4998 would ratify and confirm the Navajo Nation's water
rights to approximately 2,355 acre-feet per year (AFY) from
surface water and groundwater sources in the Rio San Jose
basin. These amounts include 638 AFY of groundwater for past
and present uses, and 1300 AFY of groundwater for future uses.
Conditionally settled claims in the Rio Puerco basin would be
506 AFY.
S. 4998 would also protect non-Indian water users, as the
Navajo Nation would agree to not make priority calls against
certain non-Indian water rights.
While the Navajo Nation Rio San Jose settlement would be
fund-based, the proposed Federal contribution is largely based
on the expansion of the existing Navajo-Gallup Water Supply
Project and the creation of a regional water transmission
system and community connections to bring imported water into
the Rio San Jose basin. The trust fund to be established by S.
4998 totals $223.271 million, to be indexed. Of that amount,
$200.271 million could be used for:
(1) Acquiring water rights or water supply;
(2) Planning, permitting, designing, engineering,
constructing, reconstructing, replacing,
rehabilitating, operating, or repairing water
production, treatment, or delivery infrastructure,
including for domestic and municipal use, on-farm
improvements, or wastewater infrastructure;
(3) Navajo Nations' water rights management and
administration;
(4) Watershed protection and enhancement, support of
agriculture, water-related Navajo community welfare and
economic development, and costs relating to
implementation of the settlement agreement; and
(5) Environmental compliance associated with project
developed with trust funds.
The remaining trust fund money ($23 million) could only be
used for OM&R. The State of New Mexico would contribute $3
million for the benefit of non-Indian acequia projects.
There are over 300 ``Navajo'' allotments in the basin.
While the Department believes that most of these are allotments
that were issued to individual Indians out of the Public Domain
under section four of the General Allotment Act, final historic
studies have not been completed and water rights claims have
not been developed. Therefore, it has not been possible to
include these allotments in the settlement. The water rights of
these allotments would be adjudicated at a later date in the
on-going adjudication of the Rio San Jose basin. S. 4998 would
not in any way impose any conditions on the use of water on
these allotments or alter the ability of the United States and
allottees to make water rights claims for these lands in the
future.
The Department of the Interior is pleased to support S.
4998. This bill in combination with S. 595 would settle all
Tribal rights in the Rio San Jose Basin, bringing stability to
the basin for all water users. S. 4998 would provide funding to
allow the Navajo Nation to plan water infrastructure for the
current and long-term water needs of its people. This approach
to settlement is consistent with Tribal sovereignty and self-
determination, and with our trust responsibilities, and will
help to ensure that Navajo Nation can maintain itself in a
viable homeland.
EXECUTIVE COMMUNICATIONS
The Committee has received no communications from the
Executive Branch regarding S. 4998.
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]