[Senate Report 119-124]
[From the U.S. Government Publishing Office]
Calendar No. 428
119th Congress } { Report
SENATE
2d Session } { 119-124
=======================================================================
OHKAY OWINGEH RIO CHAMA WATER RIGHTS SETTLEMENT ACT OF 2025
----------------
June 4, 2026.--Ordered to be printed
----------------
Ms. Murkowski, from the Committee on Indian Affairs,
submitted the following
R E P O R T
[To accompany S. 563]
[Including cost estimate of the Congressional Budget Office]
The Committee on Indian Affairs, to which was referred the
bill (S. 563) to approve the settlement of water rights claims
of Ohkay Owingeh in the Rio Chama Stream System, to restore the
Bosque on Pueblo Land 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
The purpose of S. 563 is to ratify, confirm, and approve
the water settlement agreement reached between the Ohkay
Owingeh Pueblo, the State of New Mexico, the City of Espanola,
and five acequia associations, and to resolve the Pueblo's
water rights claims in the Rio Chama Stream System in New
Mexico. S. 563 also authorizes the funds necessary to carry out
the settlement agreement and the Act.
BACKGROUND AND NEED
The Ohkay Owingeh Pueblo (Pueblo) is a federally recognized
Tribe located in northern New Mexico whose lifeways, cultural
practices, and traditional economy have long depended on waters
of the Rio Grande and Rio Chama rivers, and access to those
rivers' bosques (riparian forests).
In the 1950s and 1960s, the Bureau of Reclamation and U.S.
Army Corps of Engineers undertook flood control and river
channelization projects along portions of the Rio Grande
flowing through Ohkay Owingeh's traditional homelands. These
projects were intended to speed the flow and increase the
amount of water to benefit junior water users in southern New
Mexico.\1\ According to the Pueblo, the use of levees and other
channelization projects significantly changed the character of
the Rio Grande river system and resulted in negative impacts on
the Pueblo's bosque.\2\ The Pueblo states that, over the last
70 years, the bosque has ``withered and begun its path to
complete destruction.''\3\
---------------------------------------------------------------------------
\1\Ohkay Owingeh Rio Chama Water Rights Settlement Act of 2024:
Hearing to Receive Testimony on S. 4505 Before the S. Comm. on Indian
Affs, 118th Cong. 2 (2024) (statement of the Honorable Larry M.
Phillips, Governor, Pueblo of Ohkay Owingeh).
\2\Id.
\3\Id.
---------------------------------------------------------------------------
In the 1960s, the U.S. Army Corps of Engineers also
constructed an Abiquiu Dam on the Rio Chama to regulate river
flows and store water for downstream uses, including for
release to southern New Mexico farmers.\4\ According to the
Pueblo, the reduction in the natural flood flows and changes in
river hydrology led to ``the same disaster as occurred on the
Rio Grande: the slow death of the bosque.''\5\
---------------------------------------------------------------------------
\4\Id.
\5\Id.
---------------------------------------------------------------------------
S. 563 would provide the resources and legal framework
necessary to implement the settlement agreement, support water
infrastructure and conservation projects, restore and maintain
the Rio Chama bosque on Pueblo lands, and promote long-term
certainty and stability for all parties that depend on the
basin's limited water resources. S. 563 also establishes an
interest-bearing trust fund to support implementation of the
settlement agreement. Funds would be used for water
infrastructure and water resource projects benefiting Ohkay
Owingeh Pueblo and other water users, as well as restoration
and long-term maintenance of the Rio Chama bosque located on
Pueblo lands.
SUMMARY
S. 563 would authorize, ratify and confirm the July 5,
2023, Ohkay Owingeh Rio Chama Water Rights Settlement among the
Ohkay Owingeh Pueblo, the State of New Mexico, the City of
Espanola, and five acequia associations representing more than
80 community ditch and acequias in the Rio Chama Basin. The
bill would direct the Secretary of the Interior to execute the
agreement, provide funding, and authorize actions necessary to
implement the settlement.
The bill specifically:
Authorizes the deposit of $745 million in
mandatory funds into the Ohkay Owingeh Settlement Trust
Fund, with any investment earnings authorized to
implement the Agreement;
Provides for specific uses of the funds,
subject to the approval of Tribal management and
expenditure plans, and water rights; and
uthorizes Ohkay Owingeh Pueblo to allocate,
distribute, and lease its water rights on and off Ohkay
Owingeh Pueblo lands.
LEGISLATIVE HISTORY
S. 563 was introduced by Senators Heinrich and Lujan on
February 13, 2025. The Committee held a business meeting on
March 5, 2025, and ordered the bill to be reported favorably
without amendment.
An identical companion bill, H.R. 1323 was introduced by
Representatives Leger Fernandez (D-NM-3) and Stansbury (D-NM-1)
in the House of Representatives on February 13, 2025.
Representative Vasquez (D-NM-2) was added as a cosponsor on
February 14, 2025. The bill was referred to the House Committee
on Natural Resources.
In the 118th Congress, an identical bill, S. 4505, was
introduced by Senators Heinrich and Lujan on June 11, 2024. The
Committee held a hearing on S. 4505 on July 25, 2024. The
Committee held a business meeting to consider S. 4505 on
September 18, 2024, and ordered the bill reported favorably,
without amendment. (S. Rept. 118-261).
An identical companion bill, H.R. 8685, was introduced by
Representatives Leger Fernandez (D-NM-3) and Stansbury (D-NM-1)
in the House of Representatives on June 11, 2024. The House
Natural Resources Subcommittee on Water, Wildlife and Fisheries
held a hearing on H.R. 8685 on July 23, 2024.
COMMITTEE RECOMMENDATION
The Senate Committee on Indian Affairs in an open business
meeting on March 5, 2025, by a majority voice vote of a quorum
present, recommends that the Senate pass S. 563, without
amendment.
SECTION-BY-SECTION ANALYSIS
Section 1--Short title
This section sets forth the short title as the ``Ohkay
Owingeh Rio Chama Water Rights Settlement Act of 2025.''
Section 2--Purposes
This section sets forth the purposes of the bill to:
resolve the water rights claims of Ohkay Owingeh Pueblo in the
Rio Chama Stream System; authorize, ratify, and confirm the
Ohkay Owingeh Rio Chama Water Rights Settlement Agreement
(Agreement) entered into by Ohkay Owingeh Pueblo, the State of
New Mexico, and various other parties; authorize the Secretary
of the Interior to execute and carry out the Agreement; and
provide mandatory funding to implement the Agreement.
Section 3--Definitions
This section provides definitions for terms used in 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, 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
Ohkay Owingeh Pueblo to comply with federal environmental laws
as applicable, affirms that execution of the Agreement does not
constitute a major federal action under the Endangered Species
Act and the National Environmental Policy Act, and provides for
Ohkay Owingeh Pueblo's costs for related compliance activities
to be paid from the Ohkay Owingeh Water Rights Settlement Trust
Fund.
Section 5--Pueblo Water Rights
Section 5(a) requires Ohkay Owingeh Pueblo's Water Rights
to be held in trust by the United States.
Section 5(b) protects these rights from loss through non-
use, forfeiture, abandonment, or other operation of law, and
preserves after-acquired State law-based water rights.
Section 5(c) clarifies that any use of Ohkay Owingeh Pueblo
Water Rights shall be subject to the Agreement and this
legislation.
Section 5(d) authorizes Ohkay Owingeh Pueblo to allocate,
distribute, and lease the rights on and off Ohkay Owingeh
Pueblo lands, and clarifies that any uses off Ohkay Owingeh
Pueblo lands are subject to the terms of the Agreement, this
legislation, and maximum lease terms not to exceed 99 years.
Section 5(e) prohibits alienation and forfeiture of Ohkay
Owingeh Pueblo Water Rights, and provides that authorizations
in the legislation satisfy the requirements for federal
authorization of purchases or grants of land from Indians.
Section 6--Settlement Trust Fund
Section 6(a) authorizes an interest-bearing trust fund, the
Ohkay Owingeh Settlement Trust Fund, and requires the Secretary
of the Interior to manage, invest, and distribute the Ohkay
Owingeh Settlement Trust Fund, including investment earnings,
until the funds are expended, withdrawn, or reverted to the
Treasury.
Section 6(b) directs the Secretary of the Interior to
deposit $745 million in mandatory funds into the Ohkay Owingeh
Settlement Trust Fund.
Section 6(c) requires the Secretary of the Interior to: (1)
manage, invest, and distribute all amounts in the Ohkay Owingeh
Settlement Trust Fund in accordance with the American Indian
Trust Fund Management Reform Act of 1994 and other federal laws
governing the deposit and investment of Tribal funds; and (2)
invest the funds with earnings accruing to Ohkay Owingeh
Pueblo.
Section 6(d) requires the Secretary of the Interior to make
most funds available to Ohkay Owingeh Pueblo on the
enforceability date, with the exception of $100 million in
specified funds, including investment earnings, made available
upon deposit for specific uses.
Section 6(e) permits withdrawals from the Ohkay Owingeh
Settlement Trust Fund for certain specified purposes pursuant
to a Tribal management and expenditure plan submitted by Ohkay
Owingeh Pueblo and approved and enforced by the Secretary of
the Interior in accordance with the American Indian Trust Fund
Management Reform Act of 1994 and a requirement that Ohkay
Owingeh Pueblo spend all amounts withdrawn, including
investment earnings.
Section 6(f) 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 for under the
Administrative Procedure Act.
Section 6(g) authorizes five specific uses of the Ohkay
Owingeh Settlement Trust Fund:
Water production, treatment, or delivery
infrastructure for domestic, municipal, or wastewater
use;
Water production, treatment, or delivery
infrastructure and acquisition of water for irrigation,
livestock, and agriculture;
Watershed and endangered species habitat
protection, bosque restoration or improvement, land and
water rights acquisition, community welfare and
economic development, and implementation of the
Agreement;
Management and administration of Ohkay
Owingeh Pueblo water rights; and
Environmental compliance for projects
authorized by this legislation.
Section 6(h) limits federal liability for expenditures and
investments of amounts withdrawn from the Ohkay Owingeh
Settlement Trust Fund.
Section 6(i) requires Ohkay Owingeh Pueblo to submit an
annual expenditure report to the Secretary of the Interior
regarding withdrawals from the Ohkay Owingeh Settlement Trust
Fund.
Section 6(j) prohibits per capita distribution of any
portion of the Ohkay Owingeh Settlement Trust Fund.
Section 6(k) confirms Ohkay Owingeh Pueblo will retain
title, control, and operation of any project constructed with
funds from the Ohkay Owingeh Settlement Trust Fund.
Section 6(l) clarifies that Ohkay Owingeh Pueblo is
responsible for the operation, maintenance, and replacement
costs of such projects constructed with funds from the Ohkay
Owingeh Settlement Trust Fund.
Section 7--Funding
Section 7(a) authorizes $765 million in mandatory
appropriations for the Ohkay Owingeh Settlement Trust Fund.
Section 7(b) provides for adjustments of the Ohkay Owingeh
Settlement Trust Fund to address cost fluctuation and market
volatility.
Section 7(c) requires the State of New Mexico to contribute
$98.5 million for signatory acequia ditch projects, $32 million
for City of Espanola water system projects, and $500,000 to
deposit into an interest-bearing account to mitigate impacts to
non-Pueblo domestic and livestock groundwater rights resulting
from Ohkay Owingeh Pueblo's new water use.
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)-(c) requires the parties to execute waivers
and releases of claims related to Ohkay Owingeh Pueblo's water
rights in the Rio Chama Stream System and the taking of the
bosque property before and including the enforceability date,
and clarifies that such waivers and releases shall take effect
on the enforceability date.
Section 9(d)-(e) reserves the United States and Ohkay
Owingeh Pueblo's claims to enforce water rights and water
quality claims accruing after the enforceability date;
preserves the sovereignty and jurisdiction of the United States
and Tribal government entities; preserves the United States'
authority to fulfill its trust responsibilities and enforce its
laws, including environmental and jurisdictional laws;
clarifies that the Act does not confer jurisdiction on any
State court to interpret federal health, safety, or
environmental laws or determine the duties of any party
thereunder, conduct judicial review of any federal agency
action, or interpret Ohkay Owingeh Pueblo law; and clarifies
that the Act does not waive individual Ohkay Owingeh Pueblo
Tribal member claims.
Section 9(f)-(g) provides for tolling of claims and
defenses between the enactment and enforceability dates, and
provides for termination of the agreement if the Secretary of
the Interior's statement of findings is not issued by July 1,
2038, or a later date mutually agreed upon by Ohkay Owingeh
Pueblo and the United States with notice to the State of New
Mexico.
Section 10--Satisfaction of Claims
This section provides that benefits realized under this
legislation shall serve as full satisfaction of any claim of
Ohkay Owingeh Pueblo against the United States that Ohkay
Owingeh Pueblo waives and releases under the Act.
Section 11--Miscellaneous Provisions
Section 11(a)-(c) 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.
Section 11(d)-(e) provides that the legislation controls
over the Agreement in the event of a conflict, and holds the
United States harmless from any damages resulting from the
construction, operation, and maintenance of the bosque
restoration and improvement project that is carried out by
Ohkay Owingeh Pueblo.
Section 12--Antideficiency
This section clarifies that the United States shall not be
liable for failure to perform if adequate appropriations are
not provided by Congress.
COST AND BUDGETARY CONSIDERATIONS
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The bill would:
Secure water rights for the Ohkay Owingeh
Pueblo in New Mexico by ratifying a 2023 agreement
between the Pueblo and other parties
Establish and appropriate funds for the
Ohkay Owingeh Water Rights Settlement Trust Fund to be
administered by the Department of the Interior until
its transfer to the Pueblo
Estimated budgetary effects would mainly stem from:
Spending of appropriated amounts
Spending of interest that is credited to the
trust fund
Areas of significant uncertainty include:
Estimating how much interest would be
credited to the fund
Anticipating when the water rights
settlement would be finalized
Bill summary: S. 563 would secure Pueblo Water Rights for
the Ohkay Owingeh Pueblo by ratifying the Ohkay Owingeh Rio
Chama Water Rights Settlement reached in 2023 by Ohkay Owingeh,
the State of New Mexico, and other parties.
The bill would appropriate funds to capitalize the Ohkay
Owingeh Water Rights Settlement Trust Fund, which would be
credited with interest during the period in which the trust
fund is administered by the Department of the Interior (DOI)
and made available to the Pueblo for specified uses.
Estimated Federal cost: The estimated budgetary effect of
S. 563 is shown in Table 1. The costs of the legislation fall
within budget function 300 (natural resources and environment).
TABLE 1.--ESTIMATED INCREASES IN DIRECT SPENDING UNDER S. 563
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, millions of dollars--
--------------------------------------------------------------------------------------------------
2026 2027 2028 2029 2030 2031 2032 2033 2034 2035 2036 2026-2031 2026-2036
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ohkay Owingeh Water RightsPSettlement Trust Fund:
Estimated Budget Authority....................... 838 0 0 0 0 0 0 0 0 0 0 838 838
Estimated Outlays................................ 0 5 9 9 9 9 9 10 10 10 10 41 90
Interest Credited to the Trust Fund:
Estimated Budget Authority....................... 29 33 35 36 37 39 41 41 43 43 45 209 421
Estimated Outlays................................ 0 0 0 0 0 0 0 0 0 0 0 0 0
Total Changes:
Estimated Budget Authority....................... 867 33 35 36 37 39 41 41 43 43 45 1,047 1,259
Estimated Outlays................................ 0 5 9 9 9 9 9 10 10 10 10 41 90
--------------------------------------------------------------------------------------------------------------------------------------------------------
CBO estimates that direct spending would increase by $1.3 billion in 2038, the year in which CBO anticipates ownership of the trust fund would be
transferred to the tribe.
CBO estimates that implementing S. 563 would increase spending subject to appropriation by less than $500,000 in every year through 2031, totaling $1
million over the 2026-2031 period; any related spending would be subject to the availability of appropriated funds.
Basis of estimate: For this estimate, CBO assumes that the
bill will be enacted and the specified amounts deposited into
the trust fund in fiscal year 2026.
Using information from DOI and based on the bill's
specifications, CBO expects that the following conditions will
be met by July 1, 2038:
The settlement, including amendments
required to conform to the bill, will be final and
executed;
All waivers and releases of claims required
under the bill will be executed; and
All appeals will have been exhausted and the
courts will have approved the agreement as binding on
all parties.
If those conditions are met, CBO expects that DOI will
publish findings in the Federal Register for the settlement,
stating that the bill's conditions have been met and that
ownership of the trust fund is to be transferred.
Direct spending: CBO estimates that enacting the bill would
increase direct spending by $90 million over the 2026-2036
period and $1.3 billion after 2036.
S. 563 would establish the Ohkay Owingeh Water Rights
Settlement Trust Fund and would appropriate $745 million to
capitalize it. The bill also would appropriate additional
amounts to account for inflation over the period from June 2023
until those amounts are deposited into the fund. Based on the
assumption that the bill will be enacted in fiscal year 2026,
CBO estimates that the appropriation to account for inflation
would be $93 million; thus, we estimate that the appropriation
for the fund would total $838 million.
The amounts deposited in the trust fund would be credited
with interest. Based on the interest rates that underly CBO's
projections for the February 2026 baseline, CBO estimates that
$421 million would be credited to the trust fund over the 2026-
2036 window. (Additional amounts would be credited after 2036
until the trust fund is transferred to the tribe.) The federal
government would retain ownership of the amounts in the fund
and the interest credited on that amount until 2038. At that
time, CBO expects that all settlement conditions will be
satisfied and DOI would transfer ownership of the fund to the
Pueblo. The Pueblo would have immediate access to $100 million
from the trust fund to spend on specified purposes related to
water production, treatment, or delivery infrastructure. Based
on the expectation that the settlement will be finalized in
2038 and the assumption that spending on specified activities
would continue until that time, CBO estimates that the Pueblo
would spend $90 million over the 2026-2036 period and $10
million in 2037.
In addition, and based on the outlay timing for the $100
million available to the Pueblo, CBO estimates that the
interest credited on that amount would total $31 million over
the 2026-2036 period.
When the federal government transfers ownership of the
trust fund to the Pueblo, the amount transferred (including
credited interest) would be considered a federal expenditure.
Based on the assumption that all of the conditions would be met
by 2038, CBO estimates that the following amounts would be
transferred to the Pueblo in 2038:
$738 million (the total amount originally
deposited minus the $100 million spent from the amount
that was made immediately available),
$421 million (total interest credited to the
fund from 2026-2036, including $31 million credited for
the $100 million that was immediately available),
$93 million (the amount of interest CBO
estimates would be credited to the fund from 2037
through the transfer in 2038).
In total, CBO estimates that the total amount transferred
in 2038 would round to $1.3 billion.
The federal government would retain fiduciary
responsibility over the trust fund until the Pueblo is ready to
plan, design, construct, and maintain water projects; those
subsequent actions would not affect the federal budget.
Spending subject to appropriation: The department also
would incur costs to oversee environmental and technical
compliance for water projects constructed by the Pueblo. Based
on the average costs to oversee activities for other water
settlements, CBO estimates the cost of those activities would
be less than $500,000 in any year and would total $1 million
over the 2026-2031 period; any related spending would be
subject to the availability of appropriated funds.
Nonbudgetary effects: The settlement would require New
Mexico to contribute $131 million. If the federal government
takes control of assets that belong to other entities, those
amounts are generally considered nonbudgetary and their
collection and disbursement do not affect the deficit.
Uncertainty: This estimate is subject to uncertainty
because the amount of interest credited to the fund would
depend on interest rates over the next 12 years. If interest
rates are higher or lower than CBO currently projects, the
amount of credited interest transferred to the tribe would be
correspondingly more or less than CBO estimates.
In addition, the timing of when all settlement conditions
are satisfied will affect the amount of interest credited to
the fund. S. 563 would allow the parties to delay finalization
of the settlement if additional time is needed to satisfy the
required conditions. If settlement conditions are satisfied
later or earlier than CBO expects, the amount of credited
interest would be correspondingly more or less than CBO
estimates.
Finally, the bill would provide the Pueblo with immediate
access to $100 million from the trust fund and any interest
earned on that amount before the settlement conditions are
finalized. If spending occurs more slowly or quickly than CBO
estimates, interest credited to the fund would be
correspondingly more or less than we estimated.
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 2.
TABLE 2.--CBO'S ESTIMATE OF THE STATUTORY PAY-AS-YOU-GO EFFECTS OF S. 563, THE OHKAY OWINGEH RIO CHAMA WATER RIGHTS SETTLEMENT ACT OF 2025, AS ORDERED
REPORTED BY THE SENATE COMMITTEE ON INDIAN AFFAIRS ON MARCH 5, 2025
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, millions of dollars--
-------------------------------------------------------------------------------------------------------------
2026 2027 2028 2029 2030 2031 2032 2033 2034 2035 2036 2026-2031 2026-2036
--------------------------------------------------------------------------------------------------------------------------------------------------------
NET INCREASE IN THE ON-BUDGET DEFICIT
Pay-As-You-Go Effect...................... 0 5 9 9 9 9 9 10 10 10 10 41 90
--------------------------------------------------------------------------------------------------------------------------------------------------------
Increase in long-term net direct spending and deficits: CBO
estimates that enacting S. 563 would not increase net direct
spending by more than $2.5 billion in any of the four
consecutive 10-year periods beginning in 2037.
CBO estimates that enacting S. 563 would not increase on-
budget deficits by more than $5 billion in any of the four
consecutive 10-year periods beginning in 2037.
Mandates: The bill contains no intergovernmental or
private-sector mandates as defined in the Unfunded Mandates
Reform Act.
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. 563, as
reported, will have minimal impact on regulatory or paperwork
requirements.
EXECUTIVE TESTIMONY AND COMMUNICATIONS
The testimony provided by the U.S. Department of the
Interior from the July 25, 2024, hearing on S. 4505 follows:
statement of tracy canard goodluck senior advisor to the assistant
secretary for indian affairs u.s. department of the interior
s. 4505, a bill to approve the settlement of water rights claims of
ohkay owingeh in the rio chama stream system, to restore the bosque on
pueblo land in the state of new mexico, and for other purposes
I. Introduction
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
the bill we are discussing today.
S. 4505 would approve and provide authorizations to carry
out the settlement of all water rights claims of the Ohkay
Owingeh in the Rio Chama basin in New Mexico.
II. Background
A. Historical Context
Like other Pueblos in New Mexico, Ohkay Owingeh were
agricultural people living in established villages when the
Spanish explorers first came to New Mexico. Before Ohkay
Owingeh's lands became part of the United States, they fell
under the jurisdiction first of Spain, and later of Mexico,
both of which recognized and protected the rights of the
Pueblos to use water. When the United States asserted its
sovereignty over Pueblo lands and what is now the State of New
Mexico, it did so under the terms of the Treaty of Guadalupe
Hidalgo, which protected rights recognized by prior sovereigns,
including Ohkay Owingeh's rights.
B. Ohkay Owingeh and the Rio Chama
The Rio Chama, located in north-central New Mexico and to
the northwest of Albuquerque, is a major tributary of the Rio
Grande. The river originates in Colorado, just above the New
Mexico border, and runs about 130 miles to its confluence with
the Rio Grande. Ohkay Owingeh, located 28 miles north of Santa
Fe, has approximately 13,244 acres in the Rio Chama, Rio
Grande, and Rio Santa Cruz basins. Ohkay Owingeh has
approximately 2,880 enrolled members, of which about 2,205
reside on Ohkay Owingeh lands.
Ohkay Owingeh is located in an arid region of New Mexico,
and drought is a common occurrence that has impacted, and
continues to impact, Ohkay Owingeh lands. Since time
immemorial, Ohkay Owingeh has made use of the water in the Rio
Chama basin. However, the supply of water in the Rio Chama
available to Ohkay Owingeh has been reduced over time by
diversions by neighboring non-Indian water users. Consequently,
Ohkay Owingeh is facing water shortages that impact its ability
to provide sustainable water for its current and future water
needs. Additionally, a portion of Ohkay Owingeh's lands lie
within the ``bosque,'' or forested habitat, along the Rio Chama
and Rio Grande, which is of great historical and cultural
significance to Ohkay Owingeh. The bosque areas within Ohkay
Owingeh's lands were altered as a result of flood control and
irrigation projects constructed by the United States on both
the Rio Chama and Rio Grande in the mid-1900s. Recent effects
of global warming and climate change are exacerbating these
effects and surface water supplies are dwindling. Ohkay Owingeh
seeks funding as part of the proposed settlement to remedy the
damage to its lands that lie within these bosque areas and to
also develop Ohkay Owingeh's water resources for various uses,
including domestic and municipal purposes for current and
future population.
In the late 1940s, a general stream adjudication of the Rio
Chama was initiated in New Mexico state court and was
eventually removed to Federal District Court in 1969.
Negotiations regarding potential settlement of Ohkay Owingeh's
water rights claims have been ongoing since 2015, when the
United States established a negotiation team.
III. Proposed Ohkay Owingeh Settlement Legislation
S. 4505 would resolve all of Ohkay Owingeh's water rights
claims in the Rio Chama basin in New Mexico; ratify and confirm
the water rights settlement agreement signed in 2023 by Ohkay
Owingeh, the State of New Mexico, and non-Indian water users;
authorize the Secretary of the Interior to sign the settlement
agreement; and provide funding to implement the settlement.
S. 4505 would ratify and confirm Ohkay Owingeh's water
rights to approximately 1,756 acrefeet per (AFY) from surface
water and groundwater sources. These amounts include 771 AFY of
future groundwater use for economic development and an
important right to 250 AFY of water to provide for bosque
health and restoration on Ohkay Owingeh lands, as well as water
to continue irrigated farming in the Rio Chama basin.
S. 4505 would also protect non-Indian water users, as Ohkay
Owingeh would not make priority calls for its senior rights
against other settlement parties, owners of domestic wells and
livestock rights, and any non-signatory water users who
cooperate in shortage sharing. In addition, Ohkay Owingeh would
promulgate a water code, which would govern permitting of uses
of its water; provide processes for protests by parties
affected by Ohkay Owingeh permitting decisions; and ensure that
water use under an Ohkay Owingeh permit would not impair
existing surface and groundwater rights.
Finally, S. 4505 would establish a trust fund totaling $745
million, to be indexed, that Ohkay Owingeh could use to develop
water infrastructure as it determines necessary and on its own
timeframe. Monies in the fund could be used for:
(1) Planning, permitting, designing, engineering,
constructing, reconstructing, replacing,
rehabilitating, operating, or repairing water
production, treatment, or delivery infrastructure,
including for domestic and municipal supply or
wastewater infrastructure;
(2) Planning, permitting, designing, engineering,
constructing, reconstructing, replacing,
rehabilitating, operating, or repairing water
production, treatment, or delivery infrastructure,
acquisition of water, or on-farm improvements for
irrigation, livestock, and support of agriculture;
(3) Planning, permitting, designing, engineering,
constructing, reconstructing, replacing,
rehabilitating, operating, monitoring, or other
measures for watershed and endangered species habitat
protection, bosque restoration or improvement
(including any required cost shares for and allowable
contributions to a Federal project or program), land
and water rights acquisition, water-related Ohkay
Owingeh community welfare and economic development, and
costs relating to implementation of the settlement
agreement;
(4) The management and administration of water
rights; and
(5) Ensuring environmental compliance for projects
developed with settlement funds.
The State of New Mexico would contribute $131 million to
provide for benefits to non-Indian water users, including
$500,000 for a fund to mitigate impairment to non-Indian
domestic and livestock well users resulting from new or changed
water uses by Ohkay Owingeh.
IV. Department of the Interior Position on S. 4505
The Department is pleased to support S. 4505. This bill is
the result of multiple decades of litigation and nearly a
decade of good-faith negotiations to reach consensus on key
issues. S. 4505 is designed to meet Ohkay Owingeh's current and
long-term needs for water by providing a trust fund to be used
by Ohkay Owingeh according to its needs and its own decisions.
Rather than committing Ohkay Owingeh or the United States to
construct specific water infrastructure projects, the bill
would allow Ohkay Owingeh to make decisions regarding how,
when, and where to develop water infrastructure. S. 4505 would
also allow Ohkay Owingeh to restore and protect its culturally
important bosque lands. This approach to settlement is
consistent with Tribal sovereignty and self-determination, and
with our trust responsibilities, and will help to ensure that
Ohkay Owingeh can maintain its way of life.
changes in existing law
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]