[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
m