[Senate Report 114-41]
[From the U.S. Government Publishing Office]
Calendar No. 81
114th Congress } { Report
SENATE
1st Session } { 114-41
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TO MAKE TECHNICAL CORRECTIONS TO THE NAVAJO WATER RIGHTS SETTLEMENT IN
THE STATE OF NEW MEXICO, AND FOR OTHER PURPOSES
_______
May 11, 2015.--Ordered to be printed
_______
Mr. Barrasso, from the Committee on Indian Affairs,
submitted the following
R E P O R T
[To accompany S. 501]
The Committee on Indian Affairs, to which was referred the
bill (S. 501) to make technical corrections to the Navajo water
rights settlement 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. 501 is to make technical corrections to
the Navajo-Gallup Water Supply Project, as established by the
Omnibus Public Land Management Act of 2009, 43 U.S.C. 407 note,
Pub. Law No. 111-11.
Background
This legislation, S. 501, would make technical amendments
to the Navajo-Gallup Water Supply Project (Project), which was
authorized in the Omnibus Public Land Management Act of 2009
(Act). That Act directed the Secretary of the Interior to
design, construct, operate and maintain a water supply project
that would provide water to the Navajo Nation, the Jicarilla
Apache Nation, and the City of Gallup, New Mexico.
That Act further provided that the Navajo Nation would pay
for any costs of operations and maintenance of the Project
facilities allocable to the Navajo Nation after a 10-year grace
period that is triggered by the first delivery of project
water. The original Act also authorized, in error, 2 percent
and 4 percent of the total Project funding to be used for
cultural protection and fish and wildlife facilities,
respectively. This allocation was a reversal of the parties'
original intent.
The Act also approved the water rights Settlement Agreement
between the Navajo Nation, the United States, and the State of
New Mexico. A separate Contract between the Navajo Nation and
the United States was also incorporated as part of the
Settlement Agreement.
The Act set forth certain deadlines that must be met in
implementing the Settlement Agreement and Contract and, if
those deadlines were not met, provided the stream adjudication
court the authority to nullify the Settlement Agreement. The
current statutory language also implies that the state stream
adjudication court would have jurisdiction to nullify the
Contract between the Navajo Nation and the United States, which
was not the intent of the parties.
Finally, the Act limited certain authorized funding to
include only the construction or rehabilitation of certain
wells. The Act did not include the funding authorization for
the planning or design of those projects which are necessary
components of construction and rehabilitation.
Need for Legislation
This bill is needed to clarify ambiguities in the Omnibus
Public Land Management Act of 2009 regarding this Project and
aligns statutory provisions with the original intent of the
stakeholders. These technical corrections can only be
accomplished by Congressional action.
Legislative History
This measure, S. 501, was introduced on February 12, 2015,
by Senators Udall and Heinrich. The bill was referred to the
Committee on Indian Affairs. No hearing was held on the bill
this Congress. On February 25, 2015, the Committee met at a
business meeting to consider the bill. No amendments were
offered and the bill was ordered to be reported favorably to
the Senate.
The House companion bill is H.R. 1406 and was introduced on
March 17, 2015, by Representative Lujaan. The bill, H.R. 1406,
was referred to the House Committee on Natural Resources, and
within the Committee to the Subcommittee on Water, Power, and
Oceans.
In the 113th Congress, Senators Udall and Heinrich
introduced a bill which contained provisions similar to S. 501
and additional provisions affecting other settlement Acts: the
Taos Pueblo Indian Water Rights Settlement Act and Aamodt
Litigation Settlement Act. The bill, S. 1447, was referred to
the Committee on Indian Affairs. On September 10, 2013, the
Committee held a hearing on the bill at which the
Administration testified in support of only the Navajo Nation
water settlement provisions. On June 11, 2014, the Committee
met at a business meeting to consider the bill. Two amendments
were offered. One amendment struck the Taos Pueblo Indian Water
Rights Settlement Act and Aamodt Litigation Settlement Act
provisions, leaving only the Navajo Nation water settlement
provisions. The other amendment changed the title of the bill.
The bill, as amended, was ordered to be reported favorably to
the Senate. No further action took place on the bill.
Section-by-Section Analysis for S. 501
Section 1--Short title
This Act may be cited as the ``New Mexico Navajo Water
Settlement Technical Corrections Act.''
Section 2--Navajo water settlement
Sections 2(a) and 2(b) correct several misspellings and
incorrect internal references within the Omnibus Public Land
Management Act of 2009.
Section 2(c) clarifies that the Navajo Nation can take
delivery of non-project water, but it is responsible for the
associated operation and maintenance costs.
Section 2(d) addresses the current funding authorization
for construction and rehabilitation by expressly including the
planning and design phases of construction and rehabilitation.
Section 2(d) also corrects an error in the Act which prescribed
2 percent and 4 percent funding for cultural resource
protection and fish and wildlife facilities, respectively.
Section 2(d) switches the percentage allocations to properly
address the original intent of the parties.
Finally, Section 2(e) clarifies that the Court presiding
over the stream adjudication has the jurisdiction to nullify
the Water Rights Settlement Agreement, but not the Contract
supplying water to the parties.
Cost and Budgetary Considerations
The following cost estimate, as provided by the
Congressional Budget Office, dated March 19, 2015, was prepared
for S. 501:
March 19, 2015.
Hon. John Barrasso,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 501, the New Mexico
Navajo Water Settlement Technical Corrections Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Aurora
Swanson.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
S. 501 would amend the Navajo Settlement Act to authorize
the Bureau of Reclamation to use funds for planning and
designing certain groundwater well projects for the Navajo
Nation in New Mexico. The bill also would clarify certain
provisions of that act and shift some spending among authorized
activities. Based on information from the bureau, CBO estimates
that implementing the legislation would have no significant
effect on the federal budget. Because enacting S. 501 would not
affect revenues or direct spending, pay-as-you-go procedures do
not apply.
Under current law, the bureau is authorized to construct
and rehabilitate groundwater wells and related pipeline
facilities for municipal and domestic use by the Navajo Nation.
The bureau is also authorized to plan and design groundwater
wells subject to the availability of funding for those
activities from local sponsors. S. 501 would clarify the
bureau's authority to allocate federal resources for those
purposes. Based on information from the bureau, those
activities could be accommodated under the existing
authorization ceilings for those projects.
The bill would clarify that the Navajo Nation can take
delivery of nonproject water but is responsible for any
associated operation and maintenance costs. S. 501 also would
reallocate a portion of authorized spending for certain
groundwater well projects from fish and wildlife facilities to
the preservation of archaeological resources near those
projects. CBO estimates those changes would have no significant
effect on federal spending.
S. 501 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Aurora Swanson.
The estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
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. 501 will
have a minimal impact on regulatory or paperwork requirements.
Executive Communications
The Committee has received no communications from the
Executive Branch regarding S. 501.
Changes in Existing Law
In accordance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 501, as ordered reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic):
43 U.S.C. Sec. 407 (Omnibus Public Land Management Act of 2009)
Sec. 10302. Definitions
In this subtitle:
* * * * * * *
(2) Abeyta adjudication.--The term `Abeyta
adjudication' means the general stream adjudication
that is the subject of the civil actions entitled
`State of New Mexico v. Abeyta and State of New Mexico
v. [Arrellano] Arellano', Civil Nos. 7896-BB (D.N.M)
and 7939-BB (D.N.M.) (consolidated).
* * * * * * *
(27) Stream adjudication.--The term `stream
adjudication' means the general stream adjudication
that is the subject of New Mexico v. United States, et
al., No. [75-185] 75-184 (11th Jud. Dist., San Juan
County, New Mexico) (involving claims to waters of the
San Juan River and the tributaries of that river).
Sec. 10603(c)(2)(A). Delivery and Use of Navajo-Gallup Water Supply
Project Water
* * * * * * *
(i) a part of, and charged against, the
available consumptive use apportionment made to
the State of Arizona by Article III(a) of the
Compact and to the Upper Basin by Article
III(a) of the Colorado River Compact, in which
case any water so diverted by the Project into
the Lower Basin for use within the State of
Arizona shall not be credited as water reaching
Lee Ferry pursuant to [Article III(c)] Articles
III(c) and III(d) of the Colorado River
Compact; or
(ii) subject to subparagraph (B), a part of,
and charged against, the consumptive use
apportionment made to the Lower Basin by
Article III(a) of the Colorado River Compact,
in which case it shall--
* * * * * * *
(II) be credited as water
reaching Lee Ferry pursuant to
[Article III(c)] Articles
III(c) and III(d) of the
Colorado River Compact; and
Sec. 10604(f)(1). Project Contracts
(f) Temporary Waivers of Payments.--
(1) In general.--On the date on which the Secretary
declares a section of the Project to be substantially
complete and delivery of Project water generated by and
through that section of the Project can be made to the
Nation, the Secretary may waive, for a period of not
more than 10 years, the operation, maintenance, and
replacement costs allocable to the Nation for that
section of the Project that the Secretary determines
are in excess of the ability of the Nation to pay.
* * * * * * *
Sec. 10609. Authorization of Appropriations
* * * * * * *
(b) Appropriations for Conjunctive Use Wells.--
(1) San juan wells.--There is authorized to be
appropriated to the Secretary for the [construction and
rehabilitation] planning, design, construction,
rehabilitation, and operation and maintenance of
conjunctive use wells under section 10606(b)
$30,000,000, as adjusted under paragraph (3), for the
period of fiscal years 2009 through 2019.
(2) Wells in the little colorado and rio grande
basins.--There are authorized to be appropriated to the
Secretary for the [construction and rehabilitation]
planning, design, construction, rehabilitation, and
operation and maintenance of conjunctive use wells
under section 10606(c) such sums as are necessary for
the period of fiscal years 2009 through 2024.
* * * * * * *
(e) Cultural Resources.--
(1) In general.--The Secretary may use not more than
[2 percent] 4 percent of amounts made available under
subsections (a), (b), and (c) for the survey, recovery,
protection, preservation, and display of archaeological
resources in the area of a Project facility or
conjunctive use well.
(f) Fish and Wildlife Facilities.--
(1) In general.--In association with the development
of the Project, the Secretary may use not more than [4
percent] 2 percent of amounts made available under
subsections (a), (b), and (c) to purchase land and
construct and maintain facilities to mitigate the loss
of, and improve conditions for the propagation of, fish
and wildlife if any such purchase, construction, or
maintenance will not affect the operation of any water
project or use of water.
Sec. 10701(e). Agreement
* * * * * * *
(e) Nullification.--
* * * * * * *
(2) Revocability of agreement, contract and
authorizations.--
(A) Petition.--If the Nation determines that
a deadline described in paragraph (1)(A) is not
substantially met, the Nation may submit to the
court in the stream adjudication a petition to
enter an order terminating the Agreement [and
Contract].
(B) Termination.--On issuance of an order to
terminate the Agreement [and Contract] under
subparagraph (A)--
(i) the Trust Fund shall be
terminated;
(ii) the balance of the Trust Fund
shall be deposited in the general fund
of the Treasury;
(iii) the authorizations for
construction and rehabilitation of
water projects under this subtitle
shall be revoked and any Federal
activity related to that construction
and rehabilitation shall be suspended;
and
(iv) this part and parts I and III
shall be null and void.
(3) Conditions not causing nullification of
settlement.--
(A) In general.--If a condition described in
subparagraph (B) occurs, the Agreement [and
Contract] shall not be nullified or terminated.
[all]