[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 4505 Reported in Senate (RS)]
<DOC>
Calendar No. 663
118th CONGRESS
2d Session
S. 4505
[Report No. 118-261]
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.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 11, 2024
Mr. Heinrich (for himself and Mr. Lujan) introduced the following bill;
which was read twice and referred to the Committee on Indian Affairs
December 4, 2024
Reported by Mr. Schatz, without amendment
_______________________________________________________________________
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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Ohkay Owingeh Rio
Chama Water Rights Settlement Act of 2024''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Purposes.
Sec. 3. Definitions.
Sec. 4. Ratification of Agreement.
Sec. 5. Pueblo Water Rights.
Sec. 6. Settlement Trust Fund.
Sec. 7. Funding.
Sec. 8. Enforceability Date.
Sec. 9. Waivers and releases of claims.
Sec. 10. Satisfaction of claims.
Sec. 11. Miscellaneous provisions.
Sec. 12. Antideficiency.
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 Rio Chama Stream System in
the State for--
(A) Ohkay Owingeh; and
(B) the United States, acting as trustee for Ohkay
Owingeh;
(2) to authorize, ratify, and confirm the Agreement entered
into by Ohkay Owingeh, the State, and various other parties 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 other 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) Adjudication.--The term ``Adjudication'' means the
general stream adjudication of water rights in the Rio Chama
Stream System entitled ``State of New Mexico ex rel. State
Engineer v. Aragon'', Civil No. 69-CV-07941-KWR/KK, pending, as
of the date of enactment of this Act, in the United States
District Court for the District of New Mexico.
(2) Agreement.--The term ``Agreement'' means--
(A) the document entitled ``Ohkay Owingeh Rio Chama
Water Rights Settlement'' and dated July 5, 2023, and
the exhibits attached thereto; and
(B) any amendment to the document referred to in
subparagraph (A) (including an amendment to an exhibit
thereto) that is executed to ensure that the Agreement
is consistent with this Act.
(3) Bosque.--The term ``bosque'' means a gallery forest
located along the riparian floodplain of a stream, riverbank,
or lake.
(4) City of espanola.--The term ``City of Espanola'' means
a municipal corporation of the State.
(5) Enforceability date.--The term ``Enforceability Date''
means the date described in section 8.
(6) Ohkay owingeh; pueblo.--The terms ``Ohkay Owingeh'' and
``Pueblo'' mean the body politic and federally recognized
Indian nation.
(7) Partial final judgment and decree.--The term ``Partial
Final Judgment and Decree'' means a final or interlocutory
partial final judgment and decree entered by the United States
District Court for the District of New Mexico with respect to
the water rights of Ohkay Owingeh in the Rio Chama Stream
System--
(A) that is substantially in the form described in
the Agreement, as amended to ensure consistency with
this Act; and
(B) from which no further appeal may be taken.
(8) Pueblo grant.--The term ``Pueblo Grant'' means the land
recognized and confirmed by the Federal patent issued to Ohkay
Owingeh (then known as the ``Pueblo of San Juan'') under the
Act of December 22, 1858 (11 Stat. 374, chapter V).
(9) Pueblo land.--The term ``Pueblo Land'' means any real
property that is--
(A) held by the United States in trust for Ohkay
Owingeh within the Rio Chama Stream System;
(B) owned by the Pueblo within the Rio Chama Stream
System before the Enforceability Date; or
(C) acquired by the Pueblo within the Rio Chama
Stream System on or after the Enforceability Date if
the real property is located--
(i) within the exterior boundaries of the
Pueblo Grant; or
(ii) within the exterior boundaries of any
territory set aside for the Pueblo by law,
Executive order, or court decree.
(10) Pueblo water rights.--The term ``Pueblo Water Rights''
means the water rights of Ohkay Owingeh in the Rio Chama Stream
System--
(A) as identified in the Agreement and section 5;
and
(B) as confirmed in the Partial Final Judgment and
Decree.
(11) Rio chama stream system.--The term ``Rio Chama Stream
System'' means the Rio Chama surface water drainage basin
within the State, as illustrated in Exhibit A to the Agreement.
(12) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(13) Signatory acequia.--The term ``Signatory Acequia''
means an acequia that is a signatory to the Agreement.
(14) State.--The term ``State'' means the State of New
Mexico.
(15) Trust fund.--The term ``Trust Fund'' means the Ohkay
Owingeh Water Rights Settlement Trust Fund established under
section 6(a).
SEC. 4. RATIFICATION OF AGREEMENT.
(a) Ratification.--
(1) In general.--Except as modified by this Act, and to the
extent that the Agreement does not conflict with this Act, the
Agreement is authorized, ratified, and confirmed.
(2) Amendments.--If an amendment to the Agreement, or to
any exhibit to the Agreement requiring the signature of the
Secretary, is executed in accordance with this Act to make the
Agreement consistent with this Act, the amendment is
authorized, ratified, and confirmed.
(b) Execution.--
(1) In general.--To the extent the Agreement does not
conflict with this Act, the Secretary shall execute the
Agreement, including all exhibits thereto or parts of the
Agreement requiring the signature of the Secretary.
(2) Modifications.--Nothing in this Act prohibits the
Secretary, after execution of the Agreement, from approving any
modification to the Agreement, including an exhibit to the
Agreement, that is consistent with this Act, to the extent that
the modification does not otherwise require congressional
approval under section 2116 of the Revised Statutes (25 U.S.C.
177) or any other applicable provision of Federal law.
(c) Environmental Compliance.--
(1) In general.--In implementing the Agreement and this
Act, the Secretary shall comply with--
(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.), including the implementing
regulations of that Act; and
(C) all other applicable Federal environmental laws
and regulations.
(2) Compliance and coordination.--
(A) In general.--In implementing the Agreement and
this Act, the Pueblo shall prepare any necessary
environmental documents consistent with--
(i) the Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.);
(ii) the National Environmental Policy Act
of 1969 (42 U.S.C. 4321 et seq.), including the
implementing regulations of that Act; and
(iii) all other applicable Federal
environmental laws and regulations.
(B) Authorizations.--The Secretary shall--
(i) independently evaluate the
documentation required under subparagraph (A);
and
(ii) be responsible for the accuracy,
scope, and contents of that documentation.
(C) Coordination with army corps of engineers.--For
any bosque restoration or improvement project carried
out by the Pueblo with funds appropriated under this
Act, the Pueblo shall coordinate with the Corps of
Engineers to ensure that work on the project shall not
interfere with or adversely affect any authorized
Federal project that is under the jurisdiction and
authority of the Corps of Engineers.
(3) Effect of execution.--The execution of the Agreement by
the Secretary under this section shall not constitute a major
Federal action under the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.).
(4) Costs.--Any costs associated with the performance of
the compliance and coordination activities under this
subsection shall be paid from funds deposited in the Trust
Fund, subject to the condition that any costs associated with
the performance of Federal approval or other review of that
compliance work or costs associated with inherently Federal
functions shall remain the responsibility of the Secretary,
with the exception that costs for review of bosque restoration
or improvement projects by the Corps of Engineers described in
paragraph (2)(C) shall be paid from funds deposited in the
Trust Fund.
SEC. 5. PUEBLO WATER RIGHTS.
(a) Trust Status of the Pueblo Water Rights.--The Pueblo Water
Rights shall be held in trust by the United States on behalf of Ohkay
Owingeh in accordance with the Agreement and this Act.
(b) Forfeiture and Abandonment.--
(1) In general.--The Pueblo Water Rights shall not be
subject to loss through non-use, forfeiture, abandonment, or
other operation of law.
(2) State law-based water rights.--State-law based water
rights acquired by Ohkay Owingeh, or by the United States on
behalf of Ohkay Owingeh, after the date for inclusion in the
Partial Final Judgment and Decree, shall not be subject to
forfeiture, abandonment, or permanent alienation from the time
they are acquired.
(c) Use.--Any use of the Pueblo Water Rights shall be subject to
the terms and conditions of the Agreement and this Act.
(d) Authority of the Pueblo.--
(1) In general.--Ohkay Owingeh may allocate, distribute,
and lease the Pueblo Water Rights for use on Pueblo Land in
accordance with the Agreement, this Act, and applicable Federal
law, including the Act of August 9, 1955 (25 U.S.C. 415 et
seq.) (commonly known as the ``Long-Term Leasing Act'').
(2) Use off pueblo land.--
(A) In general.--Ohkay Owingeh may allocate,
distribute, and lease the Pueblo Water Rights for use
off Pueblo Land in accordance with the Agreement, this
Act, and applicable Federal law, subject to the
approval of the Secretary.
(B) Maximum term of leases.--The maximum term of
any lease, including all renewals, under this paragraph
shall not exceed 99 years.
(e) Administration.--
(1) No alienation.--The Pueblo shall not permanently
alienate any portion of the Pueblo Water Rights.
(2) Purchases or grants of land from indians.--An
authorization provided by this Act for the allocation,
distribution, leasing, or other arrangement entered into
pursuant to this Act shall be considered to satisfy any
requirement for authorization of the action required by Federal
law.
(3) Prohibition on forfeiture.--The non-use of all or any
portion of the Pueblo Water Rights by any water user shall not
result in the forfeiture, abandonment, relinquishment, or other
loss of all or any portion of the Pueblo Water Rights.
SEC. 6. SETTLEMENT TRUST FUND.
(a) Establishment.--The Secretary shall establish a trust fund, to
be known as the ``Ohkay Owingeh Water Rights Settlement Trust Fund'',
to be managed, invested, and distributed by the Secretary and to remain
available until expended, withdrawn, or reverted to the general fund of
the Treasury, consisting of the amounts deposited in the Trust Fund
under subsection (b), together with any investment earnings, including
interest, earned on those amounts for the purpose of carrying out this
Act.
(b) Deposits.--The Secretary shall deposit in the Trust Fund the
amounts made available pursuant to section 7(a).
(c) Management and Interest.--
(1) Management.--On receipt and deposit of funds into the
Trust Fund under subsection (b), 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 subsection.
(2) Investment earnings.--In addition to the amounts
deposited into the Trust Fund under subsection (b), any
investment earnings, including interest, earned on those
amounts held in the Trust Fund are authorized to be used in
accordance with subsections (e) and (g).
(d) Availability of Amounts.--
(1) In general.--Amounts appropriated to, and deposited in,
the Trust Fund, including any investment earnings (including
interest) earned on those amounts, shall be made available to
Ohkay Owingeh by the Secretary beginning on the Enforceability
Date, subject to the requirements of this section, except for
funds to be made available to Ohkay Owingeh pursuant to
paragraph (2).
(2) Use of funds.--Notwithstanding paragraph (1), not more
than $100,000,000 of the amounts deposited in the Trust Fund,
including any investment earnings, including interest, earned
on those amounts, shall be available to Ohkay Owingeh for the
following uses on the date on which the amounts are deposited
in the Trust Fund:
(A) Diversions of surface water and groundwater to
the Rio Chama bosque for immediate and essential
restoration and maintenance of the bosque.
(B) Fulfillment of the contribution of the Pueblo
under the Agreement for improvements to senior acequias
on Pueblo Land supplying water to the Pueblo and non-
Indians.
(C) Establishment and operation of the water rights
management administrative department of the Pueblo.
(D) Acquisition of water rights.
(E) Development of water infrastructure plans,
preparing environmental compliance documents, and water
project engineering and construction.
(e) Withdrawals.--
(1) Withdrawals under the american indian trust fund
management reform act of 1994.--
(A) In general.--The Pueblo may withdraw any
portion of the amounts in the Trust Fund on approval by
the Secretary of a Tribal management plan submitted by
the Pueblo in accordance with the American Indian Trust
Fund Management Reform Act of 1994 (25 U.S.C. 4001 et
seq.).
(B) 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 subparagraph (A) shall require
that the Pueblo shall spend all amounts withdrawn from
the Trust Fund, and any investment earnings (including
interest) earned on those amounts through the
investments under the Tribal management plan, in
accordance with this Act.
(C) Enforcement.--The Secretary may carry out such
judicial and administrative actions as the Secretary
determines to be necessary to enforce the Tribal
management plan under subparagraph (A) to ensure that
amounts withdrawn by the Pueblo from the Trust Fund
under that subparagraph are used in accordance with
this Act.
(2) Withdrawals under expenditure plan.--
(A) In general.--Ohkay Owingeh may submit to the
Secretary a request to withdraw funds from the Trust
Fund pursuant to an approved expenditure plan.
(B) Requirements.--To be eligible to withdraw
amounts under an expenditure plan under subparagraph
(A), the Pueblo shall submit to the Secretary an
expenditure plan for any portion of the Trust Fund the
Pueblo elects to withdraw pursuant to that
subparagraph, subject to the condition that the amounts
shall be used for the purposes described in this Act.
(C) Inclusions.--An expenditure plan under
subparagraph (A) 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 Ohkay
Owingeh, in accordance with this subsection and
subsection (g).
(D) Approval.--The Secretary shall approve an
expenditure plan submitted under subparagraph (A) if
the Secretary determines that the plan--
(i) is reasonable; and
(ii) is consistent with, and will be used
for, the purposes of this Act.
(E) 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.
(f) Effect of Section.--Nothing in this section gives Ohkay Owingeh
the right to judicial review of a determination of the Secretary
relating to whether to approve a Tribal management plan under paragraph
(1) of subsection (e) or an expenditure plan under paragraph (2) of
that subsection, except under subchapter II of chapter 5, and chapter
7, of title 5, United States Code (commonly known as the
``Administrative Procedure Act'').
(g) Uses.--The Trust Fund may only be used for the following
purposes:
(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 Pueblo community
welfare and economic development, and costs relating to
implementation of the Agreement.
(4) The management and administration of any water rights
of the Pueblo.
(5) Ensuring environmental compliance in the development
and construction of projects under this Act.
(h) 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 Pueblo under paragraph (1) or (2)
of subsection (e).
(i) Expenditure Reports.--Ohkay Owingeh shall annually submit to
the Secretary an expenditure report describing accomplishments and
amounts spent from use of withdrawals under a Tribal management plan or
an expenditure plan under paragraph (1) or (2) of subsection (e), as
applicable.
(j) No Per Capita Distributions.--No portion of the Trust Fund
shall be distributed on a per capita basis to any member of Ohkay
Owingeh.
(k) Title to Infrastructure.--Title to, control over, and operation
of any project constructed using funds from the Trust Fund shall remain
in Ohkay Owingeh, except that title to projects that are improved with
funds from the Trust Fund for the mutual benefit of the Pueblo and non-
Indians, on property owned by non-Indians, shall remain with the
underlying non-Indian owner.
(l) Operation, Maintenance, and Replacement.--All operation,
maintenance, and replacement costs of any project constructed using
funds from the Trust Fund shall be the responsibility of Ohkay Owingeh.
SEC. 7. FUNDING.
(a) Mandatory Appropriations.--Out of any funds in the Treasury not
otherwise appropriated, the Secretary of the Treasury shall transfer to
the Secretary for deposit in the Trust Fund $745,000,000, to remain
available until expended, withdrawn, or reverted to the general fund of
the Treasury.
(b) Fluctuation in Costs.--
(1) In general.--The amount 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, as indicated by the Bureau of Reclamation
Construction Cost Index-Composite Trend.
(2) Construction costs adjustment.--The amount appropriated
under subsection (a) shall be adjusted to address construction
cost changes necessary to account for unforeseen market
volatility that may not otherwise be captured by engineering
cost indices, as determined by the Secretary, including
repricing applicable to the types of construction and current
industry standards involved.
(3) Repetition.--The adjustment process under this
subsection shall be repeated for each subsequent amount
appropriated until the applicable amount, as adjusted, has been
appropriated.
(4) Period of indexing.--The period of indexing adjustment
under this subsection for any increment of funding shall start
on June 1, 2023, and end on the date on which the funds are
deposited in the Trust Fund.
(c) State Cost Share.--Pursuant to the Agreement, the State shall
contribute--
(1) $98,500,000, as adjusted for inflation pursuant to the
Agreement, for Signatory Acequias ditch improvements, projects,
and other purposes described in the Agreement;
(2) $32,000,000, as adjusted for inflation pursuant to the
Agreement, for the City of Espanola for water system
improvement projects; and
(3) $500,000, to be deposited in an interest-bearing
account, to mitigate impairment to non-Pueblo domestic and
livestock groundwater rights as a result of new Pueblo water
use.
SEC. 8. ENFORCEABILITY DATE.
The Enforceability Date shall be the date on which the Secretary
publishes in the Federal Register a statement of findings that--
(1) to the extent that the Agreement conflicts with this
Act, the Agreement has been amended to conform with this Act;
(2) the Agreement, as amended, has been executed by all
parties to the Agreement, including the United States;
(3) the United States District Court for the District of
New Mexico has approved the Agreement and has entered a Partial
Final Judgment and Decree;
(4) all the amounts appropriated under section 7(a) have
been appropriated and deposited in the Trust Fund;
(5) the State has--
(A) provided the funding under section 7(c)(1) or
entered into a funding agreement with the intended
beneficiary for that funding;
(B) provided the funding under section 7(c)(2) or
entered into a funding agreement with the intended
beneficiary for that funding;
(C) provided the funding under section 7(c)(3) and
deposited that amount into the appropriate funding
account; and
(D) enacted legislation to amend State law to
provide that the Pueblo Water Rights may be leased for
a term not to exceed 99 years, including renewals; and
(6) the waivers and releases under section 9 have been
executed by Ohkay Owingeh and the Secretary.
SEC. 9. WAIVERS AND RELEASES OF CLAIMS.
(a) Waivers and Releases of Claims by Ohkay Owingeh and United
States as Trustee for Ohkay Owingeh.--Subject to the reservation of
rights and retention of claims under subsection (d), as consideration
for recognition of the Pueblo Water Rights and other benefits described
in the Agreement and this Act, Ohkay Owingeh and the United States,
acting as trustee for Ohkay Owingeh, shall execute a waiver and release
of all claims for--
(1) water rights within the Rio Chama Stream System that
Ohkay Owingeh, or the United States acting as trustee for Ohkay
Owingeh, asserted or could have asserted in any proceeding,
including the Adjudication, on or before the Enforceability
Date, except to the extent that such rights are recognized in
the Agreement and this Act; and
(2) damages, losses, or injuries to water rights or claims
of interference with, diversion of, or taking of water rights
(including claims for injury to land resulting from such
damages, losses, injuries, interference, diversion, or taking
of water rights) in the Rio Chama Stream System that accrued at
any time up to and including the Enforceability Date.
(b) Waivers and Releases of Claims by Ohkay Owingeh Against the
United States.--Subject to the reservation of rights and retention of
claims under subsection (d), Ohkay Owingeh shall execute a waiver and
release of all claims against the United States (including any agency
or employee of the United States) for water rights within the Rio Chama
Stream System first arising before the Enforceability Date relating
to--
(1) water rights within the Rio Chama Stream System that
the United States, acting as trustee for Ohkay Owingeh,
asserted or could have asserted in any proceeding, including
the Adjudication, except to the extent that such rights are
recognized as part of the Pueblo Water Rights under this Act;
(2) foregone benefits from non-Pueblo use of water, on and
off Pueblo Land (including water from all sources and for all
uses), within the Rio Chama Stream System;
(3) damage, loss, or injury to water, water rights, land,
or natural 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 of, or
taking of water, or claims relating to a failure to protect,
acquire, replace, or develop water, water rights, or water
infrastructure) within the Rio Chama Stream System;
(4) failure to establish or provide a municipal, rural, or
industrial water delivery system on Pueblo Land within the Rio
Chama Stream System;
(5) damage, loss, or injury to water, water rights, land,
or natural resources due to construction, operation, and
management of irrigation projects on Pueblo Land or Federal
land and facilities (including damages, losses, or injuries to
fish habitat, wildlife, and wildlife habitat) within the Rio
Chama Stream System;
(6) failure to provide for operation, maintenance, or
deferred maintenance for any irrigation system or irrigation
project within the Rio Chama Stream System;
(7) failure to provide a dam safety improvement to a dam on
Pueblo Land within the Rio Chama Stream System;
(8) damage, loss, or injury to the bosque area of the Rio
Chama due to the construction, operation, and maintenance of
Abiquiu Dam and its associated infrastructure and resulting Rio
Chama flow management;
(9) the litigation of claims relating to any water right of
Ohkay Owingeh within the Rio Chama Stream System;
(10) the taking of the bosque property of the Pueblo within
the Pueblo Grant on the Rio Chama and Rio Grande as asserted in
Ohkay Owingeh v. United States, No. 22-1607L (Court of Federal
Claims);
(11) failure of the United States to acknowledge and
protect aboriginal rights to water in the Rio Chama Stream
System;
(12) the failure of the United States to develop the
irrigation water resources in the Rio Chama Stream System on
the Pueblo Grant, including failure to--
(A) construct and deliver water through the
Highline Canal;
(B) make improvements to the Chamita Ditch; and
(C) repurchase arable land unlawfully obtained by
non-Indians;
(13) the failure of the United States to prevent or remedy
non-Indians' trespass on or seizure of arable Pueblo lands in
the Rio Chama Stream System on the Pueblo Grant; and
(14) the negotiation, execution, or adoption of the
Agreement (including exhibits) and this Act.
(c) Effective Date.--The waivers and releases described in
subsections (a) and (b) shall take effect on the Enforceability Date.
(d) Reservation of Rights and Retention of Claims.--Notwithstanding
the waivers and releases under subsections (a) and (b), the Pueblo and
the United States, acting as trustee for Ohkay Owingeh, shall retain
all claims relating to--
(1) the enforcement of, or claims accruing after the
Enforceability Date relating to, water rights recognized under
the Agreement, this Act, or the Partial Final Judgment and
Decree entered in the Adjudication;
(2) activities affecting the quality of water, including
claims under--
(A) the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601
et seq.), including claims for damages to natural
resources;
(B) the Safe Drinking Water Act (42 U.S.C. 300f et
seq.);
(C) the Federal Water Pollution Control Act (33
U.S.C. 1251 et seq.); and
(D) any regulations implementing the Acts described
in subparagraphs (A) through (C);
(3) the right to use and protect water rights acquired
after the date of enactment of this Act;
(4) damage, loss, or injury to land or natural resources
that is not due to loss of water or water rights, including
hunting, fishing, gathering, or cultural rights;
(5) all rights, remedies, privileges, immunities, and
powers not specifically waived and released pursuant to this
Act or the Agreement; and
(6) loss of water or water rights in locations outside of
the Rio Chama Stream System.
(e) Effect of Agreement and Act.--Nothing in the Agreement or this
Act--
(1) reduces or extends the sovereignty (including civil and
criminal jurisdiction) of any government entity;
(2) affects the ability of the United States, as sovereign,
to carry out any activity authorized by law, including--
(A) the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601
et seq.);
(B) the Safe Drinking Water Act (42 U.S.C. 300f et
seq.);
(C) the Federal Water Pollution Control Act (33
U.S.C. 1251 et seq.);
(D) the Solid Waste Disposal Act (42 U.S.C. 6901 et
seq.); and
(E) any regulations implementing the Acts described
in subparagraphs (A) though (D);
(3) affects the ability of the United States to act as
trustee for the Pueblo (consistent with this Act), any other
pueblo or Indian Tribe, or an allottee of any other pueblo or
Indian Tribe;
(4) confers jurisdiction on any State court--
(A) to interpret Federal law relating to health,
safety, or the environment;
(B) to determine the duties of the United States or
any other party under Federal law relating to health,
safety, or the environment;
(C) to conduct judicial review of any Federal
agency action; or
(D) to interpret Pueblo law; or
(5) waives any claim of a member of Ohkay Owingeh in an
individual capacity that does not derive from a right of the
Pueblo.
(f) Tolling of Claims.--
(1) In general.--Each applicable period of limitation and
time-based equitable defense relating to a claim 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 limitation or any time-based equitable
defense under any other applicable law.
(g) Expiration.--
(1) In general.--This Act shall expire in any case in which
the Secretary fails to publish a statement of findings under
section 8 by not later than--
(A) July 1, 2038; or
(B) such alternative later date as is agreed to by
Ohkay Owingeh and the Secretary, after providing
reasonable notice to the State.
(2) Consequences.--If this Act expires under paragraph
(1)--
(A) the waivers and releases under subsections (a)
and (b) shall--
(i) expire; and
(ii) have no further force or effect;
(B) the authorization, ratification, confirmation,
and execution of the Agreement under section 4 shall no
longer be effective;
(C) any action carried out by the Secretary, and
any contract or agreement entered into, pursuant to
this Act shall be void;
(D) any unexpended Federal funds appropriated or
made available to carry out the activities authorized
by this Act, together with any interest earned on those
funds, and any water rights or contracts to use water
and title to other property acquired or constructed
with Federal funds appropriated or made available to
carry out the activities authorized by this Act shall
be returned to the Federal Government, unless otherwise
agreed to by Ohkay Owingeh and the United States and
approved by Congress; and
(E) except for Federal funds used to acquire or
construct property that is returned to the Federal
Government under subparagraph (D), the United States
shall be entitled to offset any Federal funds made
available to carry out this Act that were expended or
withdrawn, or any funds made available to carry out
this Act from other Federal authorized sources,
together with any interest accrued on those funds,
against any claims against the United States--
(i) relating to--
(I) water rights in the State
asserted by--
(aa) Ohkay Owingeh; or
(bb) any user of the Pueblo
Water Rights; or
(II) any other matter covered by
subsection (b); or
(ii) in any future settlement of water
rights of Ohkay Owingeh.
SEC. 10. SATISFACTION OF CLAIMS.
The benefits provided under this Act shall be in complete
replacement of, complete substitution for, and full satisfaction of any
claim of Ohkay Owingeh against the United States that is waived and
released by Ohkay Owingeh pursuant to section 9(b).
SEC. 11. MISCELLANEOUS PROVISIONS.
(a) No Waiver of Sovereign Immunity by the United States.--Nothing
in this Act waives the sovereign immunity of the United States.
(b) Other Tribes Not Adversely Affected.--Nothing in this Act
quantifies or diminishes any land or water right, or any claim or
entitlement to land or water, of an Indian Tribe, band, pueblo, or
community other than Ohkay Owingeh.
(c) Effect on Current Law.--Nothing in this Act affects any
provision of law (including regulations) in effect on the day before
the date of enactment of this Act with respect to pre-enforcement
review of any Federal environmental enforcement action.
(d) Conflict.--In the event of a conflict between the Agreement and
this Act, this Act shall control.
(e) Hold Harmless.--For any bosque restoration or improvement
project carried out by the Pueblo with funds appropriated under this
Act, the Pueblo shall hold and save the United States free from damages
due to the construction or operation and maintenance of the project.
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.
Calendar No. 663
118th CONGRESS
2d Session
S. 4505
[Report No. 118-261]
_______________________________________________________________________
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.
_______________________________________________________________________
December 4, 2024
Reported without amendment