[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 4998 Reported in Senate (RS)]
<DOC>
Calendar No. 665
118th CONGRESS
2d Session
S. 4998
[Report No. 118-263]
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.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 9, 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 the Navajo Nation
in the Rio San Jose Stream System 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 ``Navajo Nation Rio
San Jose Stream System 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. Navajo Nation's Water Rights.
Sec. 6. Navajo Nation Rio San Jose Settlement Trust Fund.
Sec. 7. Funding.
Sec. 8. Enforceability Date.
Sec. 9. Waivers and releases of claims.
Sec. 10. Satisfaction of claims.
Sec. 11. Consent of United States to jurisdiction for judicial review
of a Navajo Nation Water Use Permit
decision.
Sec. 12. Miscellaneous provisions.
Sec. 13. Relation to Allottees.
Sec. 14. Expansion of Navajo-Gallup Water Supply Project service area.
Sec. 15. 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 general stream adjudication
of the Rio San Jose Stream System captioned ``State of New
Mexico, ex rel. State Engineer v. Kerr-McGee, et al.'', No. D-
1333-CV-1983-00190 and No. D-1333-CV-1983-00220 (consolidated),
pending in the Thirteenth Judicial District Court for the State
of New Mexico, for--
(A) the Navajo Nation; and
(B) the United States, acting as trustee for the
Navajo Nation;
(2) to authorize, ratify, and confirm the agreement entered
into by the Navajo Nation, the State, and various other parties
to the Agreement, 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) Acequia.--The term ``Acequia'' means each of the
Bluewater Toltec Irrigation District, La Acequia Madre del Ojo
del Gallo, Moquino Water Users Association II, Murray Acres
Irrigation Association, San Mateo Irrigation Association,
Seboyeta Community Irrigation Association, Cubero Acequia
Association, Cebolletita Acequia Association, and Community
Ditch of Rio San Jose de la Cienega.
(2) Adjudication.--The term ``Adjudication'' means the
general adjudication of water rights entitled ``State of New
Mexico, ex rel. State Engineer v. Kerr-McGee, et al.'', No. D-
1333-CV-1983-00190 and No. D-1333-CV-1983-00220 (consolidated)
pending, as of the date of enactment of this Act, in the Decree
Court.
(3) Agreement.--The term ``Agreement'' means--
(A) the addendum dated June 11, 2024, to, and as
provided in Article 17 of, the document entitled ``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'' and dated
May 13, 2022, and the attachments thereto and to the
addendum; and
(B) any amendment to the documents referred to in
subparagraph (A) (including an amendment to an
attachment) that is executed to ensure that the
Agreement is consistent with this Act.
(4) Allotment.--The term ``Allotment'' means a parcel of
land that is--
(A) located within--
(i) the Rio Puerco Basin; or
(ii) the Rio San Jose Stream System; and
(B) held in trust by the United States for the
benefit of--
(i) 1 or more individual Indians; or
(ii) an Indian Tribe holding an undivided
fractional beneficial interest.
(5) Allottee.--The term ``Allottee'' means--
(A) an individual Indian holding a beneficial
interest in an Allotment; or
(B) an Indian Tribe holding an undivided fractional
beneficial interest in an Allotment.
(6) Decree court.--The term ``Decree Court'' means the
Thirteenth Judicial District Court of the State of New Mexico.
(7) Enforceability date.--The term ``Enforceability Date''
means the date described in section 8.
(8) Navajo nation; navajo; nation.--
(A) In general.--The terms ``Navajo Nation'',
``Navajo'', and ``Nation'' mean the body politic and
federally recognized Indian nation, as published on the
list required under section 104(a) of the Federally
Recognized Indian Tribe List Act of 1994 (25 U.S.C.
5131(a)), also known variously as the ``Navajo Nation
of Arizona, New Mexico, & Utah'', and the ``Navajo
Nation of Indians'' and other similar names.
(B) Inclusions.--The terms ``Navajo Nation'',
``Navajo'', and ``Nation'' include all bands of Navajo
Indians and chapters of the Navajo Nation and all
divisions, agencies, officers, and agents thereof.
(9) Navajo nation lands; navajo lands.--
(A) In general.--The terms ``Navajo Nation Lands''
and ``Navajo Lands'' mean any real property--
(i) in the Rio San Jose Stream System that
is held by the United States in trust for the
Navajo Nation, or owned by the Navajo Nation,
as of the Enforceability Date; or
(ii) in the Rio Puerco Basin that is held
by the United States in trust for the Navajo
Nation, or owned by the Navajo Nation, as of
the Enforceability Date.
(B) Inclusions.--The terms ``Navajo Nation Lands''
and ``Navajo Lands'' include land placed in trust with
the United States subsequent to the Enforceability Date
for the Navajo Nation in the Rio San Jose Stream System
and in the Rio Puerco Basin.
(C) Exclusion.--The terms ``Navajo Nation Lands''
and ``Navajo Lands'' do not include Allotments.
(10) Navajo nation water code.--The term ``Navajo Nation
Water Code'' means the water code enacted in 1984 by the Navajo
Nation Council through Resolution CAU-34-84. (22 N.N.C. 1101 et
seq.).
(11) Navajo nation water use permit.--The term ``Navajo
Nation Water Use Permit'' means a document specifying terms and
conditions for diversion and use of water on Navajo Nation
Lands issued by the Navajo Nation within the scope of its
authority under the Navajo Nation Water Code and the Settlement
Agreement.
(12) Navajo nation's water rights.--
(A) In general.--The term ``Navajo Nation's Water
Rights'' means--
(i) the water rights of the Navajo Nation
in the Rio San Jose Stream System--
(I) as identified in the Agreement
and section 5; and
(II) as confirmed in the Navajo
Partial Final Judgment and Decree; and
(ii) the water rights of the Navajo Nation
in the Rio Puerco Basin, as identified in the
Agreement and section 5.
(B) Exclusions.--The term ``Navajo Nation's Water
Rights'' does not include--
(i) any interest that the Nation may have
in an Allotment that is determined by the
Secretary to be patented pursuant to section 1
of the Act of February 8, 1887 (commonly known
as the ``Indian General Allotment Act'') (24
Stat. 388, chapter 119; 25 U.S.C. 331) (as in
effect on the day before the date of enactment
of the Indian Land Consolidation Act Amendments
of 2000 (Public Law 106-462; 114 Stat. 1991));
or
(ii) any undivided interest that the Nation
may have in an Allotment that is determined by
the Secretary to be patented pursuant to an
authority other than section 1 of the Act of
February 8, 1887 (commonly known as the
``Indian General Allotment Act'') (24 Stat.
388, chapter 119; 25 U.S.C. 331) (as in effect
on the day before the date of enactment of the
Indian Land Consolidation Act Amendments of
2000 (Public Law 106-462; 114 Stat. 1991)).
(13) Navajo partial final judgment and decree.--The term
``Navajo Partial Final Judgment and Decree'' means a final or
interlocutory partial final judgment and decree entered by the
Decree Court with respect to the Navajo Nation's Water Rights--
(A) that is substantially in the form described in
article 17.14.7.2 of the Agreement, as amended to
ensure consistency with this Act; and
(B) from which no further appeal may be taken.
(14) Navajo trust fund.--The term ``Navajo Trust Fund''
means the Navajo Nation Rio San Jose Settlement Trust Fund
established under section 6(a).
(15) Rio puerco basin.--The term ``Rio Puerco Basin'' means
the area defined by the United States Geological Survey
Hydrologic Unit Codes (HUC) 13020204 (Rio Puerco subbasin) and
13020205 (Arroyo Chico subbasin), including the hydrologically
connected groundwater.
(16) Rio san jose stream system.--The term ``Rio San Jose
Stream System'' means the geographic extent of the area
involved in the Adjudication pursuant to the description filed
in the Decree Court on November 21, 1986.
(17) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(18) Signatory acequia.--The term ``Signatory Acequia''
means an acequia that is a signatory to the Agreement.
(19) State.--The term ``State'' means the State of New
Mexico and all officers, agents, departments, and political
subdivisions of the State of New Mexico.
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 attachment 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 that the Agreement does not
conflict with this Act, the Secretary shall execute the
Agreement, including all attachments to, 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 attachment 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.--
(A) In general.--In implementing the Agreement and
this Act, the Navajo Nation 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.
(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 activities under this subsection shall be paid
from funds deposited in the Navajo Trust Fund or other sources
of funding from the Navajo Nation, subject to the condition
that any costs associated with the performance of Federal
approval or other review of such compliance work or costs
associated with inherently Federal functions shall remain the
responsibility of the Secretary.
SEC. 5. NAVAJO NATION'S WATER RIGHTS.
(a) Trust Status of Navajo Nation's Water Rights.--The Navajo
Nation's Water Rights shall be held in trust by the United States on
behalf of the Nation in accordance with the Agreement and this Act.
(b) Forfeiture and Abandonment.--
(1) In general.--The Navajo Nation's 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 the Navajo Nation, or by the United States
on behalf of the Nation, after the date for inclusion in the
Navajo 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 Navajo Nation's Water Rights shall be
subject to the terms and conditions of the Agreement and this Act.
(d) Allotment Rights Not Included.--Consistent with section 13, the
Navajo Nation's Water Rights shall not include any water rights for an
Allotment, subject to the condition that the Navajo Nation may allow
use of the Navajo Nation's Water Rights on an Allotment subject to the
terms and conditions of the Agreement and this Act.
(e) Allottees Not Adversely Affected.--Nothing in this Act
quantifies or diminishes any water right, or any claim or entitlement
to water, of an Allottee.
(f) Allottee Water Rights.--The Nation shall not object in any
general stream adjudication, including the Adjudication, to the
quantification of reasonable domestic, stock, and irrigation water uses
on an Allotment, and shall administer any water use in accordance with
applicable Federal law, including recognition of--
(1) any water use existing on an Allotment as of the date
of enactment of this Act;
(2) reasonable domestic, stock, and irrigation water uses
on an Allotment; and
(3) any water right decreed to the United States in trust
for an Allottee in a general stream adjudication, including the
Adjudication, for use on an Allotment.
(g) Authority of the Navajo Nation.--
(1) Use on navajo lands.--The Navajo Nation shall have the
authority to allocate, distribute, and lease the Navajo
Nation's Water Rights for use on Navajo Lands in accordance
with the Agreement, this Act, and applicable Federal law,
including the first section of the Act of August 9, 1955 (69
Stat. 539, chapter 615; 25 U.S.C. 415) (commonly known as the
``Long-Term Leasing Act'').
(2) Use off navajo lands.--
(A) In general.--The Navajo Nation may allocate,
distribute, and lease the Navajo Nation's Water Rights
for use off Navajo Lands in accordance with the
Agreement, this Act, and applicable Federal law,
subject to the approval of the Secretary.
(B) Maximum term.--The maximum term of any lease,
including all renewals, under this paragraph shall not
exceed 99 years.
(h) Administration.--
(1) No alienation.--The Navajo Nation shall not permanently
alienate any portion of the Navajo Nation's 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 Navajo Nation's Water Rights by any water user
shall not result in the forfeiture, abandonment,
relinquishment, or other loss of all or any portion of the
Navajo Nation's Water Rights.
(4) Forbearance by navajo nation for non-stock water rights
of certain allotments.--Forbearance by the Navajo Nation in
accordance with Article 17.13.4 of the Agreement--
(A) shall be considered non-use for purposes of
paragraph (3); and
(B) shall not result in the forfeiture,
abandonment, relinquishment, or other loss of any
portion of the Navajo Nation's Water Rights.
SEC. 6. NAVAJO NATION RIO SAN JOSE SETTLEMENT TRUST FUND.
(a) Establishment.--The Secretary shall establish a trust fund, to
be known as the ``Navajo Nation Rio San Jose 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 Navajo Trust Fund under subsection (c), together with any
investment earnings, including interest, earned on those amounts, for
the purpose of carrying out this Act.
(b) Accounts.--The Secretary shall establish in the Navajo Trust
Fund the following accounts:
(1) The Navajo Nation Water Rights Settlement Account.
(2) The Navajo Nation Operations and Maintenance Account.
(c) Deposits.--The Secretary shall deposit in the Navajo Trust Fund
the amounts made available pursuant to section 7(a).
(d) Management and Interest.--
(1) Management.--On receipt and deposit of funds into the
Navajo Trust Fund under subsection (c), the Secretary shall
manage, invest, and distribute all amounts in the Navajo 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 deposits made
to the Navajo Trust Fund under subsection (c), any investment
earnings, including interest, earned on those amounts held in
the Navajo Trust Fund are authorized to be used in accordance
with subsections (f) and (h).
(e) Availability of Amounts.--
(1) In general.--Amounts appropriated to, and deposited in,
the Navajo Trust Fund, including any investment earnings,
including interest, earned on those amounts, shall be made
available to the Nation by the Secretary beginning on the
Enforceability Date, subject to the requirements of this
section, except for funds to be made available to the Nation
pursuant to paragraph (2).
(2) Use of funds.--Notwithstanding paragraph (1), up to
$15,000,000 of the amounts deposited in the Navajo Nation Water
Rights Settlement Account, including any investment earnings,
including interest, earned on those amounts, shall be available
to the Nation on the date on which the amounts are deposited in
the Navajo Nation Water Rights Settlement Account for the
following uses:
(A) Feasibility studies, planning, engineering,
design, and related environmental, cultural, and
historical compliance, and obtaining rights-of-way or
permits for water supply infrastructure to serve Navajo
Nation needs consistent with subsection (h)(1)(B).
(B) Installing, on Navajo Lands, groundwater wells
and associated infrastructure to meet immediate
domestic, commercial, municipal and industrial water
needs, and associated environmental, cultural, and
historical compliance.
(f) Withdrawals.--
(1) Withdrawals under the american indian trust fund
management reform act of 1994.--
(A) In general.--The Navajo Nation may withdraw any
portion of the amounts in the Navajo Trust Fund on
approval by the Secretary of a Tribal management plan
submitted by the Nation in accordance with the American
Indian Trust Fund Management Reform Act of 1994 (25
U.S.C. 4001 et seq.).
(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 this paragraph shall require that
the Nation shall spend all amounts withdrawn from the
Navajo 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 this paragraph to ensure that
amounts withdrawn by the Nation from the Navajo Trust
Fund under subparagraph (A) are used in accordance with
this Act.
(2) Withdrawals under expenditure plan.--
(A) In general.--The Navajo Nation may submit to
the Secretary a request to withdraw funds from the
Navajo Trust Fund pursuant to an approved expenditure
plan.
(B) Requirements.--To be eligible to withdraw
amounts under an expenditure plan under subparagraph
(A), the Nation shall submit to the Secretary an
expenditure plan for any portion of the Navajo Trust
Fund that the Nation 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 this
paragraph shall include a description of the manner and
purpose for which the amounts proposed to be withdrawn
from the Navajo Trust Fund will be used by the Nation,
in accordance with this subsection and subsection (h).
(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.
(g) Effect of Section.--Nothing in this section gives the Navajo
Nation 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 (f) 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'').
(h) Uses.--
(1) Navajo nation water rights settlement account.--The
Navajo Nation Water Rights Settlement Account may only be used
for the following purposes:
(A) Acquiring water rights or water supply.
(B) 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.
(C) Navajo Nation's Water Rights management and
administration.
(D) Watershed protection and enhancement, support
of agriculture, water-related Navajo community welfare
and economic development, and costs relating to
implementation of the Agreement.
(E) Environmental compliance in the development and
construction of infrastructure under this Act.
(2) Navajo nation operations and maintenance account.--The
Navajo Nation Water Infrastructure Operations and Maintenance
Account may only be used to pay costs for operation,
maintenance, and replacement of water infrastructure to serve
Navajo domestic, commercial, municipal, and industrial water
uses from any water source.
(i) Liability.--The Secretary and the Secretary of the Treasury
shall not be liable for the expenditure or investment of any amounts
withdrawn from the Navajo Trust Fund by the Nation under paragraph (1)
or (2) of subsection (f).
(j) Expenditure Reports.--The Navajo Nation 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 (f), as
applicable.
(k) No Per Capita Distributions.--No portion of the Navajo Trust
Fund shall be distributed on a per capita basis to any member of Navajo
Nation.
(l) Title to Infrastructure.--Title to, control over, and operation
of any project constructed using funds from the Navajo Trust Fund shall
remain in the Navajo Nation.
(m) Operation, Maintenance, and Replacement.--All operation,
maintenance, and replacement costs of any project constructed using
funds from the Navajo Trust Fund shall be the responsibility of the
Nation.
SEC. 7. FUNDING.
(a) Mandatory Appropriations.--Out of any money in the Treasury not
otherwise appropriated, the Secretary of the Treasury shall transfer to
the Secretary the following amounts for deposit in the following
accounts:
(1) The navajo nation water rights settlement account.--For
deposit in the Navajo Nation Water Rights Settlement Account
established under section 6(b)(1), $200,271,000, to remain
available until expended, withdrawn, or reverted to the general
fund of the Treasury.
(2) The navajo nation operations and maintenance account.--
For deposit in the Navajo Nation Operations and Maintenance
Account established under section 6(b)(2), $23,000,000, to
remain available until expended, withdrawn, or reverted to the
general fund of the Treasury.
(b) Fluctuation in Costs.--
(1) In general.--The amounts 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 amounts
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
construction 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 October 1, 2021, and end on the date on which funds are
deposited in the Navajo Trust Fund.
(c) State Cost-Share.--Pursuant to the Agreement, the State shall
contribute--
(1) $3,000,000, as adjusted for inflation pursuant to the
Agreement, to the Bluewater Toltec Irrigation District and
Acequia Madre del Ojo del Gallo for purposes described in the
Agreement; and
(2) if applicable, additional funding subject to the
provisions of Article 17.12.4 of the Agreement.
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) all of the amounts appropriated under section 7(a) have
been appropriated and deposited in the designated accounts of
the Navajo Trust Fund;
(4) the State has--
(A) provided $3,000,000 of funding under section
7(c)(1) into the appropriate funding accounts or
entered into a funding agreement with the intended
beneficiaries for that funding; and
(B) enacted legislation to amend State law to
provide that a Navajo Nation Water Right may be leased
for a term not to exceed 99 years, including renewals;
(5) the Decree Court has approved the Agreement and has
entered the Navajo Partial Final Judgment and Decree; and
(6) the waivers and releases under section 9 have been
executed by the Navajo Nation and the Secretary.
SEC. 9. WAIVERS AND RELEASES OF CLAIMS.
(a) Waivers and Releases of Claims by the Navajo Nation and United
States as Trustee for the Nation.--Subject to the reservation of rights
and retention of claims under subsection (d), as consideration for
recognition of the Navajo Nation's Water Rights and other benefits
described in the Agreement and this Act, the Navajo Nation, on behalf
of the Nation and members of the Nation (other than members in their
capacity as Allottees), and the United States, acting as trustee for
the Nation and members of the Nation (other than members in their
capacity as Allottees), shall execute a waiver and release of all
claims for--
(1) water rights within the Rio San Jose Stream System that
the Navajo Nation or the United States acting as trustee for
the Nation, 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 with, diversion, or
taking of water rights) in the waters in the Rio San Jose
Stream System against any party to the Agreement, including the
members and parciantes of Signatory Acequias, that accrued at
any time up to and including the Enforceability Date.
(b) Waivers and Releases of Claims by Navajo Nation Against United
States.--Subject to the reservation of rights and retention of claims
under subsection (d), the Navajo Nation, on behalf of the Nation
(including in its capacity as an Allottee) and members of the Nation
(other than members in their capacity as Allottees) shall execute a
waiver and release of all claims against the United States (including
any agency or employee of the United States) first arising before the
Enforceability Date relating to--
(1) water rights within the Rio San Jose Stream System that
the United States, acting as trustee for the Navajo Nation,
asserted or could have asserted in any proceeding, including
the Adjudication, except to the extent that such rights are
recognized as part of the Navajo Nation's Water Rights under
this Act;
(2) foregone benefits from non-Navajo use of water, on and
off Navajo Lands, including water from all sources and for all
uses, within the Rio San Jose 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 San Jose Stream System;
(4) a failure to provide for operation, maintenance, or
deferred maintenance for any irrigation system or irrigation
project within the Rio San Jose Stream System;
(5) a failure to establish or provide a municipal, rural,
or industrial water delivery system on Navajo Lands within the
Rio San Jose Stream System;
(6) damage, loss, or injury to water, water rights, land,
or natural resources due to construction, operation, and
management of irrigation projects on Navajo Lands, including
damages, losses, or injuries to fish habitat, wildlife, and
wildlife habitat, within the Rio San Jose Stream System;
(7) a failure to provide a dam safety improvement to a dam
on Navajo Lands within the Rio San Jose Stream System;
(8) the litigation of claims relating to any water right of
the Nation within the Rio San Jose Stream System; and
(9) the negotiation, execution, or adoption of the
Agreement, including attachments, 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 Navajo
Nation and the United States, acting as trustee for the Nation, 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 Navajo Partial Final Judgment
and Decree entered in the Adjudication;
(2) activities affecting the quality of water and the
environment, 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.) (commonly referred to as the
``Clean Water Act''); 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 claims for water rights, and claims for injury to
water rights, in basins other than the Rio San Jose Stream
System, subject to the Agreement with respect to the claims of
the Navajo Nation for water rights in the Rio Puerco Basin; and
(6) all rights, remedies, privileges, immunities, powers,
and claims not specifically waived and released pursuant to
this Act or the Agreement.
(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, except as
provided in section 11;
(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.) (commonly referred to as the
``Clean Water Act'');
(D) the Solid Waste Disposal Act (42 U.S.C. 6901 et
seq.); and
(E) any regulations implementing the Acts described
in subparagraphs (A) through (D);
(3) affects the ability of the United States to act as
trustee for the Navajo Nation (consistent with this Act), any
other Indian Tribe, or an Allottee of any other 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 regarding health,
safety, or the environment; or
(C) to conduct judicial review of any Federal
agency action; or
(5) waives any claim of a member of the Navajo Nation in an
individual capacity that does not derive from a right of the
Navajo Nation.
(f) Offset Relating to Rio Puerco.--The United States shall be
entitled to offset $20,000,000 against--
(1) any judgment against the United States for claims
relating to water rights in the Rio Puerco Basin, including
breach of trust and damage claims relating to water rights in
the Rio Puerco Basin, in a case brought by the Nation or any
user of the Navajo Nation's Water Rights; or
(2) a Federal contribution to any future settlement of
water rights of the Navajo Nation in the Rio Puerco Basin.
(g) 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.
(h) 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, 2030; or
(B) such alternative later date as is agreed to by
the Navajo Nation 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 Navajo Nation 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 water rights in the State
asserted by--
(I) the Nation or any user of the
Navajo Nation's Water Rights; or
(II) any other matter covered by
subsection (b); or
(ii) in any future settlement of water
rights of the Navajo Nation.
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 the Navajo Nation against the United States that are waived
and released by the Nation pursuant to section 9(b).
SEC. 11. CONSENT OF UNITED STATES TO JURISDICTION FOR JUDICIAL REVIEW
OF A NAVAJO NATION WATER USE PERMIT DECISION.
(a) Consent.--On the Enforceability Date, the consent of the United
States is hereby given, with the consent of the Navajo Nation under
Article 17.14.4 of the Agreement, to jurisdiction in the District Court
for the Thirteenth Judicial District of the State of New Mexico, and in
the New Mexico Court of Appeals and the New Mexico Supreme Court on
appeal therefrom in the same manner as provided under New Mexico law,
over an action filed in such District Court by any party to a Navajo
Nation Water Use Permit administrative proceeding under Article 17.10.4
of the Agreement for the limited and sole purpose of judicial review of
a Navajo Nation Water Use Permit decision under article 17.10.5 of the
Agreement.
(b) Limitation.--The consent of the United States for review of a
Navajo Nation Water Use Permit is limited to judicial review, based on
the record developed through the administrative process of the Navajo
Nation, under a standard of judicial review limited to determining
whether the Navajo Nation decision on the application for the Navajo
Nation Water Use Permit--
(1) is supported by substantial evidence;
(2) is not arbitrary, capricious, or contrary to law;
(3) is not in accordance with the Agreement or the Navajo
Partial Final Judgment and Decree; or
(4) shows that the Navajo Nation acted fraudulently or
outside the scope of its authority.
(c) Navajo Nation Water Code and Interpretation.--
(1) In general.--Navajo Nation Water Code or Navajo Water
Law provisions that meet the requirements of Article 17.10 of
the Agreement shall be given full faith and credit in any
proceeding described in this section.
(2) Provisions of the navajo nation water code.--To the
extent that a State court conducting judicial review under this
section must interpret provisions of Navajo Nation law that are
not express provisions of the Navajo Nation Water Code or
Navajo Nation water law, the State court shall certify the
question of interpretation to the Navajo Nation court.
(3) No certification.--Any issues of interpretation of
standards in article 17.10.6 of the Agreement are not subject
to certification.
(4) Limitation.--Nothing in this section limits the
jurisdiction of the Decree Court to interpret and enforce the
Agreement.
SEC. 12. 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 the Navajo Nation.
(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.
SEC. 13. RELATION TO ALLOTTEES.
(a) No Effect on Claims of Allottees.--Nothing in this Act or the
Agreement shall affect the rights or claims of Allottees, or the United
States, acting in its capacity as trustee for or on behalf of
Allottees, for water rights or damages relating to land allotted by the
United States to Allottees.
(b) Relationship of Decree to Allottees.--
(1) Separate adjudication.--Notwithstanding whether an
Allotment is patented pursuant to section 1 of the Act of
February 8, 1887 (commonly known as the ``Indian General
Allotment Act'') (24 Stat. 388, chapter 119; 25 U.S.C. 331) (as
in effect on the day before the date of enactment of the Indian
Land Consolidation Act Amendments of 2000 (Public Law 106-462;
114 Stat. 1991)) or section 4 of that Act (24 Stat. 389,
chapter 119; 25 U.S.C. 334), as determined by the Secretary,
when adjudicated--
(A) water rights for Allotments shall be separate
from the Navajo Nation's Water Rights; and
(B) no water rights for Allotments shall be
included in the Navajo Partial Final Judgment and
Decree.
(2) Allotment water rights.--The Allotment water rights
adjudicated separately pursuant to paragraph (1) shall not be
subject to the restrictions or conditions that apply to the use
of the Navajo Nation's Water Rights, subject to the condition
that if an Allotment governed by the Act of February 8, 1887
(commonly known as the ``Indian General Allotment Act'') (24
Stat. 388, chapter 119) becomes Navajo Nation Lands, the water
rights associated with that Allotment shall be subject to the
restrictions and conditions on the Navajo Nation's Water Rights
set forth in this Act and the Agreement.
(3) Allottee water rights to be adjudicated.--Allottees, or
the United States, acting in its capacity as trustee for
Allottees, may make water rights claims, and those claims may
be adjudicated in the Rio San Jose Stream System or the Rio
Puerco Basin.
SEC. 14. EXPANSION OF NAVAJO-GALLUP WATER SUPPLY PROJECT SERVICE AREA.
(a) Definition of Project.--In this section, the term ``Project''
means the Navajo-Gallup Water Supply Project authorized under section
10602 of the Northwestern New Mexico Rural Water Projects Act (Public
Law 111-11; 123 Stat. 1379).
(b) Expansion of Project Service Area Authorized.--The Nation may
expand the service area for the Project in order to deliver water
supply from the Project to communities of the Nation within the Rio San
Jose Basin in the State.
(c) Approval of Final Design for Expansion.--If water will be
supplied from facilities of the Project to the Rio San Jose Basin at a
time when the Bureau of Reclamation still holds title to those
facilities, the Navajo Nation shall--
(1) obtain approval, in writing, from the Commissioner of
Reclamation for the final design of the connection and related
facilities needed to connect the extension into the Rio San
Jose area from those facilities; and
(2) coordinate construction of the connection and related
facilities with the Commissioner of Reclamation.
SEC. 15. 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. 665
118th CONGRESS
2d Session
S. 4998
[Report No. 118-263]
_______________________________________________________________________
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
Reported without amendment