Navajo Utah Water Rights Settlement Act of 2019

II Calendar No. 182 116TH CONGRESS 1ST SESSION S. 1207 [Report No. 116–79] To approve the settlement of the water rights claims of the Navajo Nation in Utah, and for other purposes. IN THE SENATE OF THE UNITED STATES APRIL 11, 2019 Mr. ROMNEY (for himself, Ms. SINEMA, Ms. MCSALLY, and Ms. WARREN) in- troduced the following bill; which was read twice and referred to the Com- mittee on Indian Affairs SEPTEMBER 9, 2019 Reported by Mr. HOEVEN, without amendment A BILL 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 Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Navajo Utah Water 4 Rights Settlement Act of 2019’’. 5 VerDate Sep 11 2014 22:44 Sep 09, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1207.RS S1207 kjohnson on DSK79L0C42 with BILLS 2 •S 1207 RS SEC. 2. PURPOSES. 1 The purposes of this Act are— 2 (1) to achieve a fair, equitable, and final settle- 3 ment of all claims to water rights in the State of 4 Utah for— 5 (A) the Navajo Nation; and 6 (B) the United States, for the benefit of 7 the Nation; 8 (2) to authorize, ratify, and confirm the Agree- 9 ment entered into by the Nation and the State, to 10 the extent that the Agreement is consistent with this 11 Act; 12 (3) to authorize and direct the Secretary— 13 (A) to execute the Agreement; and 14 (B) to take any actions necessary to carry 15 out the agreement in accordance with this Act; 16 and 17 (4) to authorize funds necessary for the imple- 18 mentation of the Agreement and this Act. 19 SEC. 3. DEFINITIONS. 20 In this Act: 21 (1) AGREEMENT.—The term ‘‘agreement’’ 22 means— 23 (A) the document entitled ‘‘Navajo Utah 24 Water Rights Settlement Agreement’’ dated De- 25 VerDate Sep 11 2014 22:44 Sep 09, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1207.RS S1207 kjohnson on DSK79L0C42 with BILLS 3 •S 1207 RS cember 14, 2015, and the exhibits attached 1 thereto; and 2 (B) any amendment or exhibit to the docu- 3 ment or exhibits referenced in subparagraph 4 (A) to make the document or exhibits consistent 5 with this Act. 6 (2) ALLOTMENT.—The term ‘‘allotment’’ means 7 a parcel of land— 8 (A) granted out of the public domain that 9 is— 10 (i) located within the exterior bound- 11 aries of the Reservation; or 12 (ii) Bureau of Indian Affairs parcel 13 number 792 634511 in San Juan County, 14 Utah, consisting of 160 acres located in 15 Township 41S, Range 20E, sections 11, 16 12, and 14, originally set aside by the 17 United States for the benefit of an indi- 18 vidual identified in the allotting document 19 as a Navajo Indian; and 20 (B) held in trust by the United States— 21 (i) for the benefit of an individual, in- 22 dividuals, or an Indian Tribe other than 23 the Navajo Nation; or 24 VerDate Sep 11 2014 22:44 Sep 09, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1207.RS S1207 kjohnson on DSK79L0C42 with BILLS 4 •S 1207 RS (ii) in part for the benefit of the Nav- 1 ajo Nation as of the enforceability date. 2 (3) ALLOTTEE.—The term ‘‘allottee’’ means an 3 individual or Indian Tribe with a beneficial interest 4 in an allotment held in trust by the United States. 5 (4) ENFORCEABILITY DATE.—The term ‘‘en- 6 forceability date’’ means the date on which the Sec- 7 retary publishes in the Federal Register the state- 8 ment of findings described in section 8(a). 9 (5) GENERAL STREAM ADJUDICATION.—The 10 term ‘‘general stream adjudication’’ means the adju- 11 dication pending, as of the date of enactment, in the 12 Seventh Judicial District in and for Grand County, 13 State of Utah, commonly known as the ‘‘South- 14 eastern Colorado River General Adjudication’’, Civil 15 No. 810704477, conducted pursuant to State law. 16 (6) INJURY TO WATER RIGHTS.—The term ‘‘in- 17 jury to water rights’’ means an interference with, 18 diminution of, or deprivation of water rights under 19 Federal or State law, excluding injuries to water 20 quality. 21 (7) MEMBER.—The term ‘‘member’’ means any 22 person who is a duly enrolled member of the Navajo 23 Nation. 24 VerDate Sep 11 2014 22:44 Sep 09, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1207.RS S1207 kjohnson on DSK79L0C42 with BILLS 5 •S 1207 RS (8) NAVAJO NATION OR NATION.—The term 1 ‘‘Navajo Nation’’ or ‘‘Nation’’ means a body politic 2 and federally recognized Indian nation, as published 3 on the list established under section 104(a) of the 4 Federally Recognized Indian Tribe List Act of 1994 5 (25 U.S.C. 5131(a)), also known variously as the 6 ‘‘Navajo Nation’’, the ‘‘Navajo Nation of Arizona, 7 New Mexico, & Utah’’, and the ‘‘Navajo Nation of 8 Indians’’ and other similar names, and includes all 9 bands of Navajo Indians and chapters of the Navajo 10 Nation and all divisions, agencies, officers, and 11 agents thereof. 12 (9) NAVAJO WATER DEVELOPMENT 13 PROJECTS.—The term ‘‘Navajo water development 14 projects’’ means projects for domestic municipal 15 water supply, including distribution infrastructure, 16 and agricultural water conservation, to be con- 17 structed, in whole or in part, using monies from the 18 Navajo Water Development Projects Account. 19 (10) NAVAJO WATER RIGHTS.—The term ‘‘Nav- 20 ajo water rights’’ means the Nation’s water rights in 21 Utah described in the agreement and this Act. 22 (11) OM&R.—The term ‘‘OM&R’’ means oper- 23 ation, maintenance, and replacement. 24 VerDate Sep 11 2014 22:44 Sep 09, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1207.RS S1207 kjohnson on DSK79L0C42 with BILLS 6 •S 1207 RS (12) PARTIES.—The term ‘‘parties’’ means the 1 Navajo Nation, the State, and the United States. 2 (13) RESERVATION.—The term ‘‘Reservation’’ 3 means, for purposes of the agreement and this Act, 4 the Reservation of the Navajo Nation in Utah as in 5 existence on the date of enactment of this Act and 6 depicted on the map attached to the agreement as 7 Exhibit A, including any parcel of land granted out 8 of the public domain and held in trust by the United 9 States entirely for the benefit of the Navajo Nation 10 as of the enforceability date. 11 (14) SECRETARY.—The term ‘‘Secretary’’ 12 means the Secretary of the United States Depart- 13 ment of the Interior or a duly authorized representa- 14 tive thereof. 15 (15) STATE.—The term ‘‘State’’ means the 16 State of Utah and all officers, agents, departments, 17 and political subdivisions thereof. 18 (16) UNITED STATES.—The term ‘‘United 19 States’’ means the United States of America and all 20 departments, agencies, bureaus, officers, and agents 21 thereof. 22 (17) UNITED STATES ACTING IN ITS TRUST CA- 23 PACITY.—The term ‘‘United States acting in its 24 trust capacity’’ means the United States acting for 25 VerDate Sep 11 2014 22:44 Sep 09, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1207.RS S1207 kjohnson on DSK79L0C42 with BILLS 7 •S 1207 RS the benefit of the Navajo Nation or for the benefit 1 of allottees. 2 SEC. 4. RATIFICATION OF AGREEMENT. 3 (a) APPROVAL BY CONGRESS.—Except to the extent 4 that any provision of the agreement conflicts with this Act, 5 Congress approves, ratifies, and confirms the agreement 6 (including any amendments to the agreement that are exe- 7 cuted to make the agreement consistent with this Act). 8 (b) EXECUTION BY SECRETARY.—The Secretary is 9 authorized and directed to promptly execute the agree- 10 ment to the extent that the agreement does not conflict 11 with this Act, including— 12 (1) any exhibits to the agreement requiring the 13 signature of the Secretary; and 14 (2) any amendments to the agreement nec- 15 essary to make the agreement consistent with this 16 Act. 17 (c) ENVIRONMENTAL COMPLIANCE.— 18 (1) IN GENERAL.—In implementing the agree- 19 ment and this Act, the Secretary shall comply with 20 all applicable provisions of— 21 (A) the Endangered Species Act of 1973 22 (16 U.S.C. 1531 et seq.); 23 (B) the National Environmental Policy Act 24 of 1969 (42 U.S.C. 4321 et seq.); and 25 VerDate Sep 11 2014 22:44 Sep 09, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1207.RS S1207 kjohnson on DSK79L0C42 with BILLS 8 •S 1207 RS (C) all other applicable environmental laws 1 and regulations. 2 (2) EXECUTION OF THE AGREEMENT.—Execu- 3 tion of the agreement by the Secretary as provided 4 for in this Act shall not constitute a major Federal 5 action under the National Environmental Policy Act 6 of 1969 (42 U.S.C. 4321 et seq.). 7 SEC. 5. NAVAJO WATER RIGHTS. 8 (a) CONFIRMATION OF NAVAJO WATER RIGHTS.— 9 (1) QUANTIFICATION.—The Navajo Nation 10 shall have the right to use water from water sources 11 located within Utah and adjacent to or encompassed 12 within the boundaries of the Reservation resulting in 13 depletions not to exceed 81,500 acre-feet annually as 14 described in the agreement and as confirmed in the 15 decree entered by the general stream adjudication 16 court. 17 (2) SATISFACTION OF ALLOTTEE RIGHTS.—De- 18 pletions resulting from the use of water on an allot- 19 ment shall be accounted for as a depletion by the 20 Navajo Nation for purposes of depletion accounting 21 under the agreement, including recognition of— 22 (A) any water use existing on an allotment 23 as of the date of enactment of this Act and as 24 VerDate Sep 11 2014 22:44 Sep 09, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1207.RS S1207 kjohnson on DSK79L0C42 with BILLS 9 •S 1207 RS subsequently reflected in the hydrographic sur- 1 vey report referenced in section 7(b); 2 (B) reasonable domestic and stock water 3 uses put into use on an allotment; and 4 (C) any allotment water rights that may be 5 decreed in the general stream adjudication or 6 other appropriate forum. 7 (3) SATISFACTION OF ON-RESERVATION STATE 8 LAW-BASED WATER RIGHTS.—Depletions resulting 9 from the use of water on the Reservation pursuant 10 to State law-based water rights existing as of the 11 date of enactment of this Act shall be accounted for 12 as depletions by the Navajo Nation for purposes of 13 depletion accounting under the agreement. 14 (4) IN GENERAL.—The Navajo water rights are 15 ratified, confirmed, and declared to be valid. 16 (5) USE.—Any use of the Navajo water rights 17 shall be subject to the terms and conditions of the 18 agreement and this Act. 19 (6) CONFLICT.—In the event of a conflict be- 20 tween the agreement and this Act, the provisions of 21 this Act shall control. 22 (b) TRUST STATUS OF NAVAJO WATER RIGHTS.— 23 The Navajo water rights— 24 VerDate Sep 11 2014 22:44 Sep 09, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1207.RS S1207 kjohnson on DSK79L0C42 with BILLS 10 •S 1207 RS (1) shall be held in trust by the United States 1 for the use and benefit of the Nation in accordance 2 with the agreement and this Act; and 3 (2) shall not be subject to forfeiture or aban- 4 donment. 5 (c) AUTHORITY OF THE NATION.— 6 (1) IN GENERAL.—The Nation shall have the 7 authority to allocate, distribute, and lease the Nav- 8 ajo water rights for any use on the Reservation in 9 accordance with the agreement, this Act, and appli- 10 cable Tribal and Federal law. 11 (2) OFF-RESERVATION USE.—The Nation may 12 allocate, distribute, and lease the Navajo water 13 rights for off-Reservation use in accordance with the 14 agreement, subject to the approval of the Secretary. 15 (3) ALLOTTEE WATER RIGHTS.—The Nation 16 shall not object in the general stream adjudication 17 or other applicable forum to the quantification of 18 reasonable domestic and stock water uses on an al- 19 lotment, and shall administer any water use on the 20 Reservation in accordance with applicable Federal 21 law, including recognition of— 22 (A) any water use existing on an allotment 23 as of the date of enactment of this Act and as 24 VerDate Sep 11 2014 22:44 Sep 09, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1207.RS S1207 kjohnson on DSK79L0C42 with BILLS 11 •S 1207 RS subsequently reflected in the hydrographic sur- 1 vey report referenced in section 7(b); 2 (B) reasonable domestic and stock water 3 uses on an allotment; and 4 (C) any allotment water rights decreed in 5 the general stream adjudication or other appro- 6 priate forum. 7 (d) EFFECT.—Except as otherwise expressly provided 8 in this section, nothing in this Act— 9 (1) authorizes any action by the Nation against 10 the United States under Federal, State, Tribal, or 11 local law; or 12 (2) alters or affects the status of any action 13 brought pursuant to section 1491(a) of title 28, 14 United States Code. 15 SEC. 6. NAVAJO TRUST ACCOUNTS. 16 (a) ESTABLISHMENT.—The Secretary shall establish 17 a trust fund, to be known as the ‘‘Navajo Utah Settlement 18 Trust Fund’’ (referred to in this Act as the ‘‘Trust 19 Fund’’), to be managed, invested, and distributed by the 20 Secretary and to remain available until expended, con- 21 sisting of the amounts deposited in the Trust Fund under 22 subsection (c), together with any interest earned on those 23 amounts, for the purpose of carrying out this Act. 24 VerDate Sep 11 2014 22:44 Sep 09, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1207.RS S1207 kjohnson on DSK79L0C42 with BILLS 12 •S 1207 RS (b) ACCOUNTS.—The Secretary shall establish in the 1 Trust Fund the following Accounts: 2 (1) The Navajo Water Development Projects 3 Account. 4 (2) The Navajo OM&R Account. 5 (c) DEPOSITS.—The Secretary shall deposit in the 6 Trust Fund Accounts— 7 (1) in the Navajo Water Development Projects 8 Account, the amounts made available pursuant to 9 section 7(a)(1); and 10 (2) in the Navajo OM&R Account, the amount 11 made available pursuant to section 7(a)(2). 12 (d) MANAGEMENT AND INTEREST.— 13 (1) MANAGEMENT.—Upon receipt and deposit 14 of the funds into the Trust Fund Accounts, the Sec- 15 retary shall manage, invest, and distribute all 16 amounts in the Trust Fund in a manner that is con- 17 sistent with the investment authority of the Sec- 18 retary under— 19 (A) the first section of the Act of June 24, 20 1938 (25 U.S.C. 162a); 21 (B) the American Indian Trust Fund Man- 22 agement Reform Act of 1994 (25 U.S.C. 4001 23 et seq.); and 24 (C) this section. 25 VerDate Sep 11 2014 22:44 Sep 09, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1207.RS S1207 kjohnson on DSK79L0C42 with BILLS 13 •S 1207 RS (2) INVESTMENT EARNINGS.—In addition to 1 the deposits under subsection (c), any investment 2 earnings, including interest, credited to amounts 3 held in the Trust Fund are authorized to be appro- 4 priated to be used in accordance with the use [Text truncated for display. Full text available on Congress.gov.]