Union Calendar No. 557
116th CONGRESS 2d Session |
[Report No. 116–673]
To approve the settlement of the water rights claims of the Navajo Nation in Utah, and for other purposes.
January 17, 2019
Mr. Bishop of Utah introduced the following bill; which was referred to the Committee on Natural Resources
December 18, 2020
Additional sponsors: Mr. Stewart, Mr. Curtis, Mr. McAdams, Mr. Luján, and Mr. O'Halleran
December 18, 2020
Reported with an amendment, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed
[Strike out all after the enacting clause and insert the part printed in italic]
[For text of introduced bill, see copy of bill as introduced on January 17, 2019]
To approve the settlement of the water rights claims of the Navajo Nation in Utah, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
This Act may be cited as the “Navajo Utah Water Rights Settlement Act of 2020”.
The purposes of this Act are—
(1) to achieve a fair, equitable, and final settlement of all claims to water rights in the State of Utah for—
(2) to authorize, ratify, and confirm the Agreement entered into by the Nation and the State, to the extent that the Agreement is consistent with this Act;
In this Act:
(1) AGREEMENT.—The term “agreement” means—
(2) ALLOTMENT.—The term “allotment” means a parcel of land—
(A) granted out of the public domain that is—
(ii) Bureau of Indian Affairs parcel number 792 634511 in San Juan County, Utah, consisting of 160 acres located in Township 41S, Range 20E, sections 11, 12, and 14, originally set aside by the United States for the benefit of an individual identified in the allotting document as a Navajo Indian; and
(3) ALLOTTEE.—The term “allottee” means an individual or Indian Tribe with a beneficial interest in an allotment held in trust by the United States.
(4) ENFORCEABILITY DATE.—The term “enforceability date” means the date on which the Secretary publishes in the Federal Register the statement of findings described in section 8(a).
(5) GENERAL STREAM ADJUDICATION.—The term “general stream adjudication” means the adjudication pending, as of the date of enactment, in the Seventh Judicial District in and for Grand County, State of Utah, commonly known as the “Southeastern Colorado River General Adjudication”, Civil No. 810704477, conducted pursuant to State law.
(6) INJURY TO WATER RIGHTS.—The term “injury to water rights” means an interference with, diminution of, or deprivation of water rights under Federal or State law, excluding injuries to water quality.
(8) NAVAJO NATION OR NATION.—The term “Navajo Nation” or “Nation” means a body politic and federally recognized Indian nation, as published on the list established 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”, the “Navajo Nation of Arizona, New Mexico, & Utah”, and the “Navajo Nation of Indians” and other similar names, and includes all bands of Navajo Indians and chapters of the Navajo Nation and all divisions, agencies, officers, and agents thereof.
(9) NAVAJO WATER DEVELOPMENT PROJECTS.—The term “Navajo water development projects” means projects for domestic municipal water supply, including distribution infrastructure, and agricultural water conservation, to be constructed, in whole or in part, using monies from the Navajo Water Development Projects Account.
(10) NAVAJO WATER RIGHTS.—The term “Navajo water rights” means the Nation’s water rights in Utah described in the agreement and this Act.
(13) RESERVATION.—The term “Reservation” means, for purposes of the agreement and this Act, the Reservation of the Navajo Nation in Utah as in existence on the date of enactment of this Act and depicted on the map attached to the agreement as Exhibit A, including any parcel of land granted out of the public domain and held in trust by the United States entirely for the benefit of the Navajo Nation as of the enforceability date.
(14) SECRETARY.—The term “Secretary” means the Secretary of the United States Department of the Interior or a duly authorized representative thereof.
(15) STATE.—The term “State” means the State of Utah and all officers, agents, departments, and political subdivisions thereof.
SEC. 4. Ratification of agreement.
(a) Approval by congress.—Except to the extent that any provision of the agreement conflicts with this Act, Congress approves, ratifies, and confirms the agreement (including any amendments to the agreement that are executed to make the agreement consistent with this Act).
(b) Execution by secretary.—The Secretary is authorized and directed to promptly execute the agreement to the extent that the agreement does not conflict with this Act, including—
(c) Environmental compliance.—
(1) IN GENERAL.—In implementing the agreement and this Act, the Secretary shall comply with all applicable provisions of—
(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.); and
(2) EXECUTION OF THE AGREEMENT.—Execution of the agreement by the Secretary as provided for in this Act shall not constitute a major Federal action under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(a) Confirmation of navajo water rights.—
(1) QUANTIFICATION.—The Navajo Nation shall have the right to use water from water sources located within Utah and adjacent to or encompassed within the boundaries of the Reservation resulting in depletions not to exceed 81,500 acre-feet annually as described in the agreement and as confirmed in the decree entered by the general stream adjudication court.
(2) SATISFACTION OF ALLOTTEE RIGHTS.—Depletions resulting from the use of water on an allotment shall be accounted for as a depletion by the Navajo Nation for purposes of depletion accounting under the agreement, including recognition of—
(3) SATISFACTION OF ON-RESERVATION STATE LAW-BASED WATER RIGHTS.—Depletions resulting from the use of water on the Reservation pursuant to State law-based water rights existing as of the date of enactment of this Act shall be accounted for as depletions by the Navajo Nation for purposes of depletion accounting under the agreement.
(b) Trust status of Navajo water rights.—The Navajo water rights—
(c) Authority of the nation.—
(1) IN GENERAL.—The Nation shall have the authority to allocate, distribute, and lease the Navajo water rights for any use on the Reservation in accordance with the agreement, this Act, and applicable Tribal and Federal law.
(2) OFF-RESERVATION USE.—The Nation may allocate, distribute, and lease the Navajo water rights for off-Reservation use in accordance with the agreement, subject to the approval of the Secretary.
(3) ALLOTTEE WATER RIGHTS.—The Nation shall not object in the general stream adjudication or other applicable forum to the quantification of reasonable domestic and stock water uses on an allotment, and shall administer any water use on the Reservation in accordance with applicable Federal law, including recognition of—
SEC. 6. Navajo trust accounts.
(a) Establishment.—The Secretary shall establish a trust fund, to be known as the “Navajo Utah Settlement Trust Fund” (referred to in this Act as the “Trust Fund”), to be managed, invested, and distributed by the Secretary and to remain available until expended, consisting of the amounts deposited in the Trust Fund under subsection (c), together with any interest earned on those amounts, for the purpose of carrying out this Act.
(c) Deposits.—The Secretary shall deposit in the Trust Fund Accounts—
(d) Management and interest.—
(1) MANAGEMENT.—Upon receipt and deposit of the funds into the Trust Fund Accounts, 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
(e) Availability of amounts.—Amounts appropriated to, and deposited in, the Trust Fund, including any investment earnings, shall be made available to the Nation by the Secretary beginning on the enforceability date and subject to the uses and restrictions set forth in this section.
(f) Withdrawals.—
(1) WITHDRAWALS UNDER THE AMERICAN INDIAN TRUST FUND MANAGEMENT REFORM ACT OF 1994.—The Nation may withdraw any portion of the funds in the 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.).
(A) 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 Trust Fund and any investment earnings accrued through the investments under the Tribal management plan in accordance with this Act.
(2) WITHDRAWALS UNDER EXPENDITURE PLAN.—The Nation may submit to the Secretary a request to withdraw funds from the Trust Fund pursuant to an approved expenditure plan.
(A) REQUIREMENTS.—To be eligible to withdraw funds under an expenditure plan under this paragraph, the Nation shall submit to the Secretary for approval an expenditure plan for any portion of the Trust Fund that the Nation elects to withdraw pursuant to this paragraph, subject to the condition that the funds shall be used for the purposes described in this Act.
(B) 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 Trust Fund will be used by the Nation, in accordance with subsections (c) and (h).
(g) Effect of act.—Nothing in this Act gives the Nation the right to judicial review of a determination of the Secretary regarding whether to approve a Tribal management plan or an expenditure plan 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.—Amounts from the Trust Fund shall be used by the Nation for the following purposes:
(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 Trust Fund by the Nation under subsection (f).
SEC. 7. Authorization of appropriations.
(a) Authorization.—There are authorized to be appropriated to the Secretary—
(b) Implementation costs.—There is authorized to be appropriated non-trust funds in the amount of $1,000,000 to assist the United States with costs associated with the implementation of the Act, including the preparation of a hydrographic survey of historic and existing water uses on the Reservation and on allotments.
(c) State cost share.—The State shall contribute $8,000,000 payable to the Secretary for deposit into the Navajo Water Development Projects Account of the Trust Fund established under section 6(b)(1) in installments in each of the 3 years following the execution of the agreement by the Secretary as provided for in subsection (b) of section 4.
(d) Fluctuation in costs.—The amount authorized to be 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 occurring after the date of enactment of this Act as indicated by the Bureau of Reclamation Construction Cost Index—Composite Trend.
(a) In general.—The waivers and release contained in section 9 of this Act shall become effective as of the date the Secretary causes to be published in the Federal Register a statement of findings that—
(1) to the extent that the agreement conflicts with the Act, the agreement has been revised to conform with this Act;
(2) the agreement, so revised, including waivers and releases of claims set forth in section 9, has been executed by the parties, including the United States;
(3) Congress has fully appropriated, or the Secretary has provided from other authorized sources, all funds authorized under subsection (a) of section 7;
(b) Expiration date.—If all the conditions precedent described in subsection (a) have not been fulfilled to allow the Secretary’s statement of findings to be published in the Federal Register by October 31, 2030—
(1) the agreement and this Act, including waivers and releases of claims described in those documents, shall no longer be effective;
(a) In General.—
(1) WAIVER AND RELEASE OF CLAIMS BY THE NATION AND THE UNITED STATES ACTING IN ITS CAPACITY AS TRUSTEE FOR THE NATION.—Subject to the retention of rights set forth in subsection (c), in return for confirmation of the Navajo water rights and other benefits set forth in the agreement and this Act, the Nation, on behalf of itself and the 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), are authorized and directed to execute a waiver and release of—
(A) all claims for water rights within Utah based on any and all legal theories that the Navajo Nation or the United States acting in its trust capacity for the Nation, asserted, or could have asserted, at any time in any proceeding, including to the general stream adjudication, up to and including the enforceability date, except to the extent that such rights are recognized in the agreement and this Act; and
(B) all claims for damages, losses, or injuries to water rights or claims of interference with, diversion, or taking of water rights (including claims for injury to lands resulting from such damages, losses, injuries, interference with, diversion, or taking of water rights) within Utah against the State, or any person, entity, corporation, or municipality, that accrued at any time up to and including the enforceability date.
(b) Claims by the navajo nation against the united states.—The Navajo Nation, on behalf of itself (including in its capacity as allottee) and its members (other than members in their capacity as allottees), shall execute a waiver and release of—
(1) all claims the Navajo Nation may have against the United States relating in any manner to claims for water rights in, or water of, Utah that the United States acting in its trust capacity for the Nation asserted, or could have asserted, in any proceeding, including the general stream adjudication;
(2) all claims the Navajo Nation may have against the United States relating in any manner to damages, losses, or injuries to water, water rights, land, or other 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, or taking of water; or claims relating to failure to protect, acquire, replace, or develop water or water rights) within Utah that first accrued at any time up to and including the enforceability date;
(c) Reservation of rights and retention of claims by the navajo nation and the united states.—Notwithstanding the waivers and releases authorized in this Act, the Navajo Nation, and the United States acting in its trust capacity for the Nation, retain—
(1) all claims for injuries to and the enforcement of the agreement and the final or interlocutory decree entered in the general stream adjudication, through such legal and equitable remedies as may be available in the decree court or the Federal District Court for the District of Utah;
(3) all claims relating to activities affecting the quality of water, including any claims under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq. (including claims for damages to natural resources)), the Safe Drinking Water Act (42 U.S.C. 300f et seq.), and the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), the regulations implementing those Acts, and the common law;
(4) all claims for water rights, and claims for injury to water rights, in states other than the State of Utah;
(d) Effect.—Nothing in the agreement or this Act—
(1) affects the ability of the United States acting in its sovereign capacity to take actions authorized by law, including any laws relating to health, safety, or the environment, including the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.), the Safe Drinking Water Act (42 U.S.C. 300f et seq.), the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.), and the regulations implementing those laws;
(2) affects the ability of the United States to take actions in its capacity as trustee for any other Indian Tribe or allottee;
(3) confers jurisdiction on any State court to—
(4) modifies, conflicts with, preempts, or otherwise affects—
(A) the Boulder Canyon Project Act (43 U.S.C. 617 et seq.);
(B) the Boulder Canyon Project Adjustment Act (43 U.S.C. 618 et seq.);
(C) the Act of April 11, 1956 (commonly known as the “Colorado River Storage Project Act”) (43 U.S.C. 620 et seq.);
(D) the Colorado River Basin Project Act (43 U.S.C. 1501 et seq.);
(E) the Treaty between the United States of America and Mexico respecting utilization of waters of the Colorado and Tijuana Rivers and of the Rio Grande, signed at Washington February 3, 1944 (59 Stat. 1219);
(e) Tolling of claims.—
(1) IN GENERAL.—Each applicable period of limitation and time-based equitable defense relating to a claim waived by the Navajo Nation 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.
SEC. 11. 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 related to lands allotted by the United States to allottees, except as provided in section 5(a)(2).
(b) Relationship of decree to allottees.—Allottees, or the United States, acting in its capacity as trustee for allottees, are not bound by any decree entered in the general stream adjudication confirming the Navajo water rights and shall not be precluded from making claims to water rights in the general stream adjudication. Allottees, or the United States, acting in its capacity as trustee for allottees, may make claims and such claims may be adjudicated as individual water rights in the general stream adjudication.
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.
Union Calendar No. 557 | |||||
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[Report No. 116–673] | |||||
A BILL | |||||
To approve the settlement of the water rights claims of the Navajo Nation in Utah, and for other purposes. | |||||
December 18, 2020 | |||||
Reported with an amendment, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed |