II 

Calendar No. 706 

115TH CONGRESS 

2D SESSION S. 664 

[Report No. 115–401] 

To approve the settlement of the water rights claims of the Navajo Nation 

in Utah, to authorize construction of projects in connection therewith, 

and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 15, 2017 

Mr. HATCH introduced the following bill; which was read twice and referred 

to the Committee on Indian Affairs 

NOVEMBER 29, 2018 

Reported by Mr. HOEVEN, with an amendment and an amendment to the title 

[Strike out all after the enacting clause and insert the part printed in italic] 

A BILL 

To approve the settlement of the water rights claims of 

the Navajo Nation in Utah, to authorize construction 

of projects in connection therewith, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Navajo Utah Water 

3 Rights Settlement Act of 2017’’. 

4 SEC. 2. PURPOSES. 

5 The purposes of this Act are— 

6 (1) to eliminate controversy over the quantifica7 tion, allocation, distribution, and use of all waters 

8 derived by or through the Navajo Nation in the 

9 State of Utah pursuant to all legal theories; 

10 (2) to recognize and protect the reserved water 

11 rights of the Navajo Nation and all those possessing 

12 water rights derived by or through the Navajo Na13 tion; 

14 (3) to protect State appropriative water rights; 

15 (4) to provide Navajo and non-Indian citizens 

16 in the Upper Colorado River Basin in Utah with cer17 tainty regarding water rights, water management, 

18 and administration that will allow them to plan for 

19 their futures; 

20 (5) to approve, ratify, and confirm the agree21 ment; 

22 (6) to authorize and direct the Secretary to exe23 cute and perform duties under the agreement and 

24 this Act; 

25 (7) to authorize the actions and appropriations 

26 necessary for the United States to fulfill its legal 


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1 and trust obligations to the tribes as provided in the 

2 agreement and this Act; 

3 (8) to provide sufficient water supplies and fa4 cilities for delivery of those supplies needed to de5 velop and maintain the Navajo Reservation in Utah 

6 as a permanent homeland for the Navajo Nation and 

7 its members; and 

8 (9) to promote the economic development and 

9 economic self-sufficiency of the Navajo Nation in 

10 Utah. 

11 SEC. 3. FINDINGS. 

12 Congress finds the following: 

13 (1) It is the policy of the United States, in 

14 keeping with the trust responsibility of the United 

15 States to Indian tribes, to settle Indian water rights 

16 claims whenever possible without lengthy and costly 

17 litigation. 

18 (2) The water rights settlements described in 

19 paragraph (1) typically require congressional review 

20 and approval. 

21 (3) The Navajo Nation and the United States, 

22 acting as trustee for the Navajo Nation and allottees 

23 of the Navajo Nation, claim the right to an 

24 unquantified amount of water from the San Juan 

25 River in the Upper Colorado River Basin in Utah. 


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1 (4) Consistent with the policy of the United 

2 States, this Act settles the water rights claims of the 

3 Navajo Nation and the United States within the 

4 State of Utah, acting as trustee for the Navajo Na5 tion and allottees of the Navajo Nation, without liti6 gation. 

7 (5) This Act settles the water rights claims of 

8 the Navajo Nation and the United States within the 

9 State of Utah, acting as trustee for the Navajo Na10 tion and allottees of the Navajo Nation, by providing 

11 a permanent source of water for the Navajo Nation 

12 in Utah, a water settlement fund to be used for the 

13 construction of drinking water infrastructure, and 

14 the financing of other modes of water delivery on the 

15 Navajo Nation in Utah in exchange for limiting the 

16 legal exposure and litigation expenses of the United 

17 States and the State of Utah. 

18 SEC. 4. DEFINITIONS. 

19 (1) AFY.—The term ‘‘afy’’ means acre-feet per 

20 year. 

21 (2) AGREEMENT.—The term ‘‘agreement’’ 

22 means the document entitled ‘‘Navajo Utah Water 

23 Rights Settlement Agreement’’ and the exhibits at24 tached thereto. 


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1 (3) ALLOTTEE.—The term ‘‘allottee’’ means in2 dividual members of the Navajo Nation or other In3 dian tribe for whom the United States holds in trust 

4 title to an allotment on the Navajo Nation Reserva5 tion in Utah. 

6 (4) ALLOTMENT.—The term ‘‘allotment’’ 

7 means— 

8 (A) a parcel of land located within the 

9 Reservation; or 

10 (B) Bureau of Indian Affairs parcel num11 ber 792 634511 in San Juan County, Utah, 

12 consisting of 160 acres located in Township 

13 41S, Range 20E, sections 11, 12, and 14, origi14 nally set aside by the United States for the ben15 efit of an individual identified in the allotting 

16 document as a Navajo Indian and held in trust 

17 by the United States. 

18 (5) ENFORCEABILITY DATE.—The term ‘‘en19 forceability date’’ means the date on which the Sec20 retary publishes in the Federal Register the state21 ment of findings described in section 9(a) of this 

22 Act. 

23 (6) GENERAL STREAM ADJUDICATION.—The 

24 term ‘‘general stream adjudication’’ means the adju25 dication pending, as of the date of enactment, in the 


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1 Seventh Judicial District in and for Grand County, 

2 State of Utah, commonly known as the ‘‘South3 eastern Colorado River General Adjudication’’, Civil 

4 No. 810704477, conducted pursuant to State law. 

5 (7) INDIAN HEALTH SERVICE.—The term ‘‘In6 dian Health Service’’ means the United States In7 dian Health Service. 

8 (8) INJURY TO WATER RIGHTS.—The term ‘‘in9 jury to water rights’’ means the loss, deprivation, 

10 impairment, or diminution of water rights. 

11 (9) MEMBER.—The term ‘‘member’’ means any 

12 person who is a duly enrolled member of the Navajo 

13 Nation. 

14 (10) NAVAJO NATION OR NATION.—The term 

15 ‘‘Navajo Nation’’ or ‘‘Nation’’ means a body politic 

16 and federally recognized Indian nation, as published 

17 on the list established under section 104(a) of the 

18 Federally Recognized Indian Tribe List Act of 1994 

19 (25 U.S.C. 5131(a)), also known variously as the 

20 ‘‘Navajo Nation’’, the ‘‘Navajo Nation of Arizona, 

21 New Mexico, & Utah’’, and the ‘‘Navajo Nation of 

22 Indians’’ and other similar names, and includes all 

23 bands of Navajo Indians and chapters of the Navajo 

24 Nation and all divisions, agencies, officers, and 

25 agents thereof. 


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1 (11) NAVAJO WATER DEVELOPMENT

2 PROJECTS.—The term ‘‘Navajo water development 

3 projects’’ means the projects constructed, in whole 

4 or in part, using monies from the Navajo Water De5 velopment Fund. 

6 (12) OM&R.—The term ‘‘OM&R’’ means oper7 ation, maintenance, and replacement. 

8 (13) PARTIES.—The term ‘‘parties’’ means the 

9 Navajo Nation, the State, and the United States. 

10 (14) RECLAMATION.—The term ‘‘Reclamation’’ 

11 means the United States Bureau of Reclamation. 

12 (15) RESERVATION.—The term ‘‘Reservation’’ 

13 means, for purposes of this agreement, the Reserva14 tion of the Navajo Nation as in existence on the date 

15 of enactment of this Act and depicted on the map 

16 attached to the agreement as Exhibit A. 

17 (16) SECRETARY.—The term ‘‘Secretary’’ 

18 means the Secretary of the United States Depart19 ment of the Interior or a duly authorized representa20 tive thereof. 

21 (17) STATE.—The term ‘‘State’’ means the 

22 State of Utah and all officers, agents, departments, 

23 and political subdivisions thereof. 

24 (18) UNITED STATES.—The term ‘‘United 

25 States’’ means the United States of America and all 


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1 departments, agencies, bureaus, officers, and agents 

2 thereof. 

3 (19) UNITED STATES ACTING IN ITS TRUST CA4 PACITY.—The term ‘‘United States acting in its 

5 trust capacity’’ means the United States acting for 

6 the benefit of the Navajo Nation or for the benefit 

7 of allottees. 

8 (20) WATER RIGHTS.—The term ‘‘water rights’’ 

9 means rights under tribal, State, and Federal law to 

10 divert, pump, impound, store, use, or reuse water 

11 within the State. 

12 SEC. 5. RATIFICATION OF AGREEMENT. 

13 (a) APPROVAL BY CONGRESS.—Except to the extent 

14 that any provision of the agreement conflicts with this Act, 

15 Congress approves, ratifies, and confirms the agreement 

16 (including any amendments to the agreement that are exe17 cuted to make the agreement consistent with this Act). 

18 (b) EXECUTION BY SECRETARY.—The Secretary is 

19 authorized and directed to promptly, and no later than 

20 180 days from the date that this Act becomes law, execute 

21 the agreement to the extent that the agreement does not 

22 conflict with this Act, including— 

23 (1) any exhibits to the agreement requiring the 

24 signature of the Secretary; and 


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1 (2) any amendments to the agreement nec2 essary to make the agreement consistent with this 

3 Act. 

4 (c) AUTHORITY OF SECRETARY.—The Secretary may 

5 carry out any action that the Secretary determines is nec6 essary or appropriate to implement the agreement and this 

7 Act. 

8 (d) ENVIRONMENTAL COMPLIANCE.— 

9 (1) ENVIRONMENTAL COMPLIANCE.—The Sec10 retary shall comply with all aspects of the National 

11 Environmental Policy Act of 1969 (42 U.S.C. 4321 

12 et seq.), the Endangered Species Act of 1973 (16 

13 U.S.C. 1531 et seq.), and other applicable Federal 

14 environmental laws and regulations. 

15 (2) EXECUTION OF THE AGREEMENT.—Execu16 tion of the agreement by the Secretary as provided 

17 for in this Act shall not constitute a major Federal 

18 action under the National Environmental Policy Act 

19 of 1969 (42 U.S.C. 4321 et seq.). 

20 (3) LEAD AGENCY.—Reclamation, or any 

21 United States or Navajo Nation agency with an 

22 intergovernmental agreement with the Secretary 

23 pursuant to subsection (a) of section 6, is authorized 

24 to be designated as the lead or joint lead agency 


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1 with respect to environmental compliance for the 

2 Navajo water development projects. 

3 SEC. 6. AUTHORIZATION FOR CONSTRUCTION OF NAVAJO 

4 WATER DEVELOPMENT PROJECTS. 

5 (a) IN GENERAL.—The Secretary, acting through the 

6 Commissioner of Reclamation, shall plan, design, and con7 struct the water diversion, delivery, and conservation fea8 tures of the Navajo water development projects. The Sec9 retary is authorized to enter into intergovernmental agree10 ments with other United States, State, or Navajo Nation 

11 agencies as necessary or appropriate to implement this 

12 section. 

13 (b) LEAD AGENCY.—Reclamation, or any Federal or 

14 Navajo Nation agency with an intergovernmental agree15 ment with the Secretary pursuant to subsection (a), is au16 thorized to serve as the lead agency or joint lead agencies 

17 with respect to any activity to plan, design, and construct 

18 the water diversion, delivery, and conservation features of 

19 any Navajo water development project to be constructed 

20 by that agency. 

21 (c) SCOPE.—The agreement and this Act contemplate 

22 a comprehensive approach to addressing identified Res23 ervation water needs by providing funds for domestic and 

24 municipal water supply and distribution infrastructure 

25 and agricultural water conservation. To allow the Navajo 


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1 Nation flexibility in meeting the needs of its people over 

2 time as both circumstances and technologies evolve, the 

3 costs to meet Reservation water needs determined in the 

4 studies identified in the agreement were used to establish 

5 the dollar amount of the Navajo Water Development 

6 Fund. To help ensure that water supply and distribution 

7 systems constructed pursuant to the agreement and this 

8 Act can be successfully developed and transitioned to be 

9 user-supported systems, the agreement and this Act also 

10 provide for a Navajo OM&R Trust Account. 

11 (d) FINAL WATER SUPPLY SYSTEM PROJECTS.— 

12 (1) DESIGN REVIEW.—Prior to beginning con13 struction activities for any water supply system as 

14 described in the agreement and constructed pursu15 ant to this section, the Secretary shall review the de16 sign of the proposed Navajo water development 

17 projects and perform value-engineering analyses. 

18 (2) NEGOTIATION AND AGREEMENT WITH THE

19 NAVAJO NATION.—On the basis of the review de20 scribed in paragraph (1), the Secretary shall nego21 tiate and reach agreement with the Navajo Nation 

22 regarding appropriate changes to the final design so 

23 that the final design meets applicable industry 

24 standards, as well as changes, if any, that would 

25 allow the projects to be constructed for the amounts 


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1 made available under subsection (a) of section 7, 

2 and improve the cost-effectiveness of the projects. 

3 (e) NONREIMBURSABILITY OF COSTS.—All costs in4 curred by the Secretary in carrying out this section shall 

5 be nonreimbursable. 

6 (f) FUNDING.— 

7 (1) FEDERAL OBLIGATION.—The total amount 

8 of obligations incurred by the Secretary for plan9 ning, design, and construction of the Navajo water 

10 development projects in subsections (a) through (j) 

11 of this section shall not exceed $198,300,000, except 

12 that the total amount of $198,300,000 shall be in13 creased or decreased, as appropriate, based on ordi14 nary fluctuations from June 2014, in construction 

15 cost indices applicable to the types of construction 

16 involved in the design and construction of the Nav17 ajo water development projects. 

18 (2) STATE COST SHARE.—The State shall con19 tribute $8,000,000 payable to the Secretary for 

20 planning, design, and construction of the Navajo 

21 water development projects in installments in each 

22 of the 3 years following the execution of the agree23 ment by the Secretary as provided for in subsection 

24 (b) of section 5. 


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1 (3) TRANSFERS TO NAVAJO OM&R ACCOUNT.— 

2 Monies made available for the Navajo water develop3 ment projects but not used for that purpose may, at 

4 the discretion of the Navajo Nation, be transferred 

5 to the Navajo OM&R Trust Account established by 

6 subsection (k). 

7 (g) APPLICABILITY OF THE INDIAN SELF-DETER8 MINATION ACT.— 

9 (1) IN GENERAL.—At the request of the Navajo 

10 Nation, and in accordance with the Indian Self-De11 termination and Education Assistance Act (25 

12 U.S.C. 5301 et seq.), the Secretary shall enter into 

13 one or more agreements with the Navajo Nation to 

14 carry out the activities authorized by this section. 

15 (2) OVERSIGHT COSTS.—Reclamation, or any 

16 Federal agency with an intergovernmental agree17 ment with the Secretary pursuant to subsection (a), 

18 and the Navajo Nation shall negotiate the cost of 

19 any oversight activities carried out by such agencies 

20 for each agreement under this section, provided that 

21 the total cost for that oversight shall not exceed 4 

22 percent of the total project costs. 

23 (h) CONVEYANCE OF TITLE TO NAVAJO WATER DE24 VELOPMENT PROJECTS.—The Secretary shall convey title 

25 to those Navajo water development projects described as 


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1 water supply and water distribution systems in the agree2 ment and authorized in this section to the Navajo Nation 

3 when construction of each project is complete and the 

4 project is operating and, if applicable, delivering potable 

5 water. 

6 (1) LIMITATION OF LIABILITY.—Effective on 

7 the date of the conveyance authorized by this sub8 section, the United States shall not be held liable by 

9 any court for damages arising out of any act, omis10 sion, or occurrence relating to the facilities conveyed 

11 under this subsection, other than damages caused by 

12 any intentional act or act of negligence committed 

13 by the United States, or by employees or agents of 

14 the United States, prior to the date of conveyance. 

15 (2) OM&R OBLIGATION OF THE UNITED

16 STATES AFTER CONVEYANCE.—The United States 

17 shall have no obligation to pay for the operation, 

18 maintenance, or replacement costs of any Navajo 

19 water development project beginning on the date on 

20 which— 

21 (A) title to the project is conveyed to the 

22 Navajo Nation; and 

23 (B) the amounts required to be deposited 

24 in the Navajo OM&R Trust Account pursuant 


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1 to subsection (b) of section 7 have been depos2 ited in that account. 

3 (i) TECHNICAL ASSISTANCE.—The Secretary shall 

4 provide technical assistance to prepare the Navajo Nation 

5 for operation of the Navajo water development projects, 

6 including operation and management training. 

7 (j) PROJECT MANAGEMENT COMMITTEE.— 

8 (1) IN GENERAL.—The Secretary shall facilitate 

9 the formation of a project management committee to 

10 be composed of representatives of— 

11 (A) the Navajo Nation; 

12 (B) Reclamation, or any Federal agency 

13 with an intergovernmental agreement with the 

14 Secretary pursuant to subsection (a), the Bu15 reau of Indian Affairs, and the Indian Health 

16 Service, as appropriate; and 

17 (C) the State. 

18 (2) DUTIES.—The project management com19 mittee shall— 

20 (A) review cost factors and budgets for 

21 construction, operation, and maintenance activi22 ties for the Navajo water development projects; 

23 (B) improve management of the planning, 

24 design, construction, and operation of the NavVerDate Sep 11 2014 23:57 Nov 29, 2018 Jkt 089200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6401 E:\BILLS\S664.RS S664

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1 ajo water development projects through en2 hanced communication; and 

3 (C) seek additional ways to reduce overall 

4 costs for the Navajo water development 

5 projects. 

6 (k) NAVAJO OM&R TRUST ACCOUNT.—The United 

7 States shall establish a trust account in the Treasury of 

8 the United States for the operation, maintenance, and re9 placement of the Navajo water development projects au10 thorized to be constructed in this section and described 

11 in the agreement as water supply systems and water dis12 tribution systems. 

13 SEC. 7. AUTHORIZATION OF APPROPRIATIONS. 

14 (a) NAVAJO WATER DEVELOPMENT FUND.— 

15 (1) IN GENERAL.—There is authorized to be 

16 appropriated to the Secretary $198,300,000 to plan, 

17 design, and construct the Navajo water development 

18 projects to remain available until expended. 

19 (2) ADJUSTMENTS.—The amount under para20 graph (1) shall be adjusted by such amounts— 

21 (A) as are contributed by the State pursu22 ant to subsection (f)(2) of section 6; and 

23 (B) as may be required by reason of 

24 changes since June 2014 in construction costs, 


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1 as indicated by engineering cost indices applica2 ble to the types of construction involved. 

3 (3) USE.—In addition to the uses authorized 

4 under paragraph (1), amounts made available under 

5 that paragraph may be used for the conduct of re6 lated activities, to comply with Federal environ7 mental laws, or may be transferred to the Navajo 

8 OM&R Trust Account as provided in subsection 

9 (f)(3) of section 6. 

10 (b) NAVAJO OM&R TRUST ACCOUNT.— 

11 (1) AUTHORIZATION OF APPROPRIATIONS.—For 

12 the purpose of assisting the Navajo Nation with the 

13 expenses of operating, maintaining, and replacing 

14 the Navajo water development projects authorized to 

15 be constructed in section 6 and described as water 

16 supply systems and water distribution systems in the 

17 agreement, there is authorized to be appropriated 

18 $11,100,000 to be deposited in the Navajo OM&R 

19 trust account established pursuant to subsection (k) 

20 of section 6, which funds shall be retained until ex21 pended. 

22 (2) MANAGEMENT OF ACCOUNT.—The Sec23 retary shall manage the account in accordance with 

24 the American Indian Trust Fund Management Re25 form Act of 1994 (25 U.S.C. 4001 et seq.), and 


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1 shall invest amounts deposited in the account in ac2 cordance with that Act and— 

3 (A) the Act of April 1, 1880 (25 U.S.C. 

4 161); and 

5 (B) the first section of the Act of June 24, 

6 1938 (25 U.S.C. 162a). 

7 (3) FLUCTUATION IN COSTS.—The amount au8 thorized to be appropriated in paragraph (1) shall be 

9 increased or decreased, as appropriate, by such 

10 amounts as may be justified by reason of ordinary 

11 fluctuations in costs occurring after June 2014 as 

12 indicated by applicable engineering cost indices. 

13 (4) AVAILABILITY OF MONIES.—Monies appro14 priated to and deposited in the Navajo OM&R Trust 

15 Account, and investment earnings thereon, shall be 

16 made available by the Secretary to the Navajo Na17 tion beginning on the date on which title to and 

18 OM&R responsibility for the Navajo water develop19 ment projects is transferred to the Navajo Nation 

20 pursuant to subsection (h) of section 6 until such 

21 monies are exhausted. 

22 (c) PROGRAMMATIC COSTS.—There is authorized to 

23 be appropriated $1,000,000 to assist the Nation with pro24 grammatic costs associated with the settlement, including 


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1 the preparation of a hydrographic survey of historic and 

2 existing water uses on the Reservation. 

3 (d) OFFSET.—To the extent necessary, the Secretary 

4 shall offset any direct spending authorized and any inter5 est earned on amounts expended pursuant to this section 

6 using such additional amounts as may be made available 

7 to the Secretary for the applicable fiscal year. 

8 SEC. 8. RESERVED WATER RIGHTS. 

9 (a) QUANTIFICATION.—The Navajo Nation shall have 

10 the right to use water from water sources located within 

11 Utah and adjacent to or encompassed within the bound12 aries of the Reservation resulting in depletions not to ex13 ceed 81,500 acre-feet annually as described in the agree14 ment. 

15 (b) RIGHTS OF MEMBERS AND ALLOTTEES.—Any 

16 entitlement to water of any member or any allottee for 

17 lands within the Reservation or for any allotment shall be 

18 satisfied out of the Navajo Nation water rights recognized 

19 in the agreement and this Act. 

20 (c) HELD IN TRUST.—The water rights of the Navajo 

21 Nation and the allottees, all as described in the agreement 

22 and as adjudicated in the decree, shall be held in trust 

23 by the United States on behalf of the Navajo Nation and 

24 allottees, respectively. 


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1 (d) FORFEITURE AND ABANDONMENT.—The water 

2 rights of the Navajo Nation and the allottees, all as de3 scribed in the agreement and adjudicated in the decree, 

4 shall not be subject to loss by non-use, forfeiture, aban5 donment, or other operation of law. 

6 SEC. 9. CONDITIONS PRECEDENT. 

7 (a) IN GENERAL.—The waivers and release contained 

8 in section 10 of this Act shall become effective as of the 

9 date the Secretary causes to be published in the Federal 

10 Register a statement of findings that— 

11 (1) to the extent that the agreement conflicts 

12 with the Act, the agreement has been revised to con13 form with this Act; 

14 (2) the agreement, so revised, including waivers 

15 and releases of claims set forth in section 10, has 

16 been executed by the parties, including the United 

17 States; 

18 (3) Congress has fully appropriated, or the Sec19 retary has provided from other authorized sources, 

20 all funds authorized by subsections (a) and (b) of 

21 section 7; 

22 (4) the State has enacted any necessary legisla23 tion and provided the funding required under the 

24 agreement and subsection (f)(2) of section 6 of this 

25 Act; and 


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1 (5) the court has entered a final or interlocu2 tory decree that— 

3 (A) confirms the water rights of the Nav4 ajo Nation; 

5 (B) with respect to the water rights of the 

6 Navajo Nation, is final as to all parties to the 

7 general stream adjudication and from which no 

8 further appeals may be taken; and 

9 (C) the Secretary, in consultation with the 

10 parties, has determined is consistent in all ma11 terial respects with the agreement and with the 

12 proposed judgment and decree agreed to by the 

13 parties to the agreement. 

14 (b) EXPIRATION DATE.—If all the conditions prece15 dent described in subsection (a) have not been fulfilled to 

16 allow the Secretary’s statement of findings to be published 

17 in the Federal Register by October 31, 2026— 

18 (1) the agreement and this Act, including waiv19 ers and releases of claims described in those docu20 ments, shall no longer be effective; 

21 (2) any funds that have been appropriated pur22 suant to section 7 of this Act but not expended shall 

23 immediately revert to the general fund of the United 

24 States; and 


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1 (3) any funds contributed by the State pursu2 ant to subsection (f)(2) of section 6 of this Act but 

3 not expended shall be returned immediately to the 

4 State. 

5 (c) EXTENSION.—The expiration date set forth in 

6 subsection (b) may be extended if the Navajo Nation, the 

7 State, and the United States (acting through the Sec8 retary) agree that an extension is reasonably necessary. 

9 SEC. 10. WAIVERS AND RELEASES. 

10 (a) CLAIMS BY THE NAVAJO NATION AND THE

11 UNITED STATES.—In return for confirmation of the Nav12 ajo Nation’s federally reserved water rights, the water 

13 rights or rights to use water of allottees in Utah, and other 

14 benefits set forth in the agreement and this Act, and in 

15 return for a waiver of claims by the State against the Na16 tion and the United States acting in its trust capacity, 

17 the Nation and the United States acting in its trust capac18 ity hereby waive and release— 

19 (1) all claims for water rights within Utah 

20 based on any and all legal theories that the Navajo 

21 Nation, allottees, or the United States acting in its 

22 trust capacity, asserted, or could have asserted, at 

23 any time in any proceeding, including to the general 

24 stream adjudication, up to and including the en25 forceability date, except to the extent that such 


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1 rights are recognized in the agreement and this Act; 

2 and 

3 (2) all claims for damages, losses, or injuries to 

4 water rights or claims of interference with, diversion, 

5 or taking of water rights (including claims for injury 

6 to lands resulting from such damages, losses, inju7 ries, interference with, diversion, or taking of water 

8 rights) within Utah against the State, or any person, 

9 entity, corporation, or municipality, that accrued at 

10 any time up to and including the enforceability date. 

11 (b) CLAIMS BY THE NAVAJO NATION AGAINST THE

12 UNITED STATES.—The Navajo Nation, on behalf of itself 

13 and its members (other than members in their individual 

14 capacity, including their capacity as allottees), shall exe15 cute a waiver and release of— 

16 (1) all claims the Navajo Nation may have 

17 against the United States relating in any manner to 

18 claims for water rights in or water of Utah that the 

19 United States acting in its trust capacity asserted, 

20 or could have asserted, in any proceeding, including 

21 the general stream adjudication; 

22 (2) all claims the Navajo Nation may have 

23 against the United States relating in any manner to 

24 damages, losses, or injuries to water, water rights, 

25 land, or other resources due to loss of water or 


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1 water rights (including damages, losses, or injuries 

2 to hunting, fishing, gathering, or cultural rights due 

3 to loss of water or water rights; claims relating to 

4 interference with, diversion, or taking of water; or 

5 claims relating to failure to protect, acquire, replace, 

6 or develop water or water rights) within Utah that 

7 first accrued at any time up to and including the en8 forceability date; 

9 (3) all claims the Nation may have against the 

10 United States relating in any manner to the litiga11 tion of claims relating to the Nation’s water rights 

12 in proceedings in Utah; and 

13 (4) all claims the Nation may have against the 

14 United States relating in any manner to the negotia15 tion, execution, or the adoption of the agreement or 

16 this Act. 

17 (c) CLAIMS BY THE STATE AGAINST THE NAVAJO

18 NATION AND THE UNITED STATES.—Except as provided 

19 in subsection (e), the State waives and releases any claims 

20 that the State may have against the Navajo Nation, 

21 allottees, and the United States acting in its trust capac22 ity, under Federal, State, or other law for— 

23 (1) all claims for injury to water rights result24 ing from the diversion or use of water on or for— 

25 (A) the Reservation; 


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1 (B) Navajo trust land in Utah; 

2 (C) Navajo fee land in Utah; or 

3 (D) allotments, arising from time immemo4 rial through the enforceability date; 

5 (2) all claims for injury to water rights arising 

6 after the enforceability date resulting from the diver7 sion or use of water on or for— 

8 (A) the Navajo Reservation; 

9 (B) Navajo trust land in Utah; 

10 (C) Navajo fee land in Utah; or 

11 (D) allotments, in a manner not in viola12 tion of the agreement or applicable law; and 

13 (3) all claims arising out of or related in any 

14 manner to the negotiation or execution of the agree15 ment, or the negotiation or enactment of this Act. 

16 (d) RESERVATION OF RIGHTS AND RETENTION OF

17 CLAIMS BY THE NAVAJO NATION AND THE UNITED

18 STATES.—Notwithstanding the waivers and releases au19 thorized in this Act, the Navajo Nation, and the United 

20 States acting in its trust capacity, retain— 

21 (1) all claims for injuries to and the enforce22 ment of the agreement and the final or interlocutory 

23 decree entered in the general stream adjudication, 

24 through such legal and equitable remedies as may be 


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1 available in the decree court or the Federal District 

2 Court for the District of Utah; 

3 (2) all rights to use and protect water rights ac4 quired after the enforceability date; 

5 (3) all claims relating to activities affecting the 

6 quality of water, including any claims under the 

7 Comprehensive Environmental Response, Compensa8 tion, and Liability Act of 1980 (42 U.S.C. 9601 et 

9 seq. (including claims for damages to natural re10 sources)), the Safe Drinking Water Act (42 U.S.C. 

11 300f et seq.), and the Federal Water Pollution Con12 trol Act (33 U.S.C. 1251 et seq.), the regulations 

13 implementing those Acts, and the common law; 

14 (4) all claims for water rights, and claims for 

15 injury to water rights, in States other than the State 

16 of Utah; 

17 (5) all claims, including environmental claims, 

18 under any laws (including regulations and the com19 mon law) relating to human health, safety, or the 

20 environment; and 

21 (6) all rights, remedies, privileges, immunities, 

22 and powers not specifically waived and released pur23 suant to the agreement and this Act. 

24 (e) RESERVATION OF RIGHTS AND RETENTION OF

25 CLAIMS BY THE STATE.—Notwithstanding the waivers of 


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1 claims and releases described in this section, the State 

2 shall retain any right to— 

3 (1) assert claims for the enforcement of the 

4 agreement and the final or interlocutory decree en5 tered in the general stream adjudication, through 

6 such legal and equitable remedies as may be avail7 able in the State decree court or the Federal District 

8 Court for the District of Utah; 

9 (2) assert claims for injury to, and seek en10 forcement of, the State’s rights under the judgment 

11 and decree entered by the court in the general 

12 stream adjudication; 

13 (3) assert past, present, and future claims to 

14 water that are subject to the general stream adju15 dication or other applicable law, and that are not in16 consistent with the agreement; 

17 (4) assert any claims for injury to water rights 

18 not specifically waived herein; and 

19 (5) take any action including environmental ac20 tions, under any laws (including regulations and the 

21 common law) relating to human health, safety, or 

22 the environment. 

23 (f) EFFECT OF SECTION.—Nothing in the agreement 

24 or this Act— 


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1 (1) affects the ability of the United States act2 ing in its sovereign capacity to take actions author3 ized by law, including any laws relating to health, 

4 safety, or the environment, including the Com5 prehensive Environmental Response, Compensation, 

6 and Liability Act of 1980 (42 U.S.C. 9601 et seq.), 

7 the Safe Drinking Water Act (42 U.S.C. 300f et 

8 seq.), the Federal Water Pollution Control Act (33 

9 U.S.C. 1251 et seq.), the Solid Waste Disposal Act 

10 (42 U.S.C. 6901 et seq.), and the regulations imple11 menting those laws; 

12 (2) affects the ability of the United States to 

13 take actions in its capacity as trustee for any other 

14 Indian tribe or allottee; 

15 (3) confers jurisdiction on any State court to— 

16 (A) interpret Federal law regarding health, 

17 safety, or the environment or determine the du18 ties of the United States or other parties pursu19 ant to such Federal law; and 

20 (B) conduct judicial review of Federal 

21 agency action; or 

22 (4) modifies, conflicts with, preempts, or other23 wise affects— 

24 (A) the Boulder Canyon Project Act (43 

25 U.S.C. 617 et seq.); 


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1 (B) the Boulder Canyon Project Adjust2 ment Act (54 Stat. 774, chapter 643); 

3 (C) the Act of April 11, 1956 (commonly 

4 known as the ‘‘Colorado River Storage Project 

5 Act’’) (43 U.S.C. 620 et seq.); 

6 (D) the Act of September 30, 1968 (com7 monly known as the ‘‘Colorado River Basin 

8 Project Act’’) (82 Stat. 885); 

9 (E) the Treaty between the United States 

10 of America and Mexico respecting utilization of 

11 waters of the Colorado and Tijuana Rivers and 

12 of the Rio Grande, signed at Washington Feb13 ruary 3, 1944 (59 Stat. 1219); 

14 (F) the Colorado River Compact of 1922, 

15 as approved by the Presidential Proclamation of 

16 June 25, 1929 (46 Stat. 3000); and 

17 (G) the Upper Colorado River Basin Com18 pact as consented to by the Act of April 6, 

19 1949 (63 Stat. 31, chapter 48). 

20 (g) TOLLING OF CLAIMS.— 

21 (1) IN GENERAL.—Each applicable period of 

22 limitation and time-based equitable defense relating 

23 to a claim described in this section shall be tolled for 

24 the period beginning on the date of enactment of 

25 this Act and ending on the enforceability date. 


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1 (2) EFFECT OF SUBSECTION.—Nothing in this 

2 subsection revives any claim or tolls any period of 

3 limitation or time-based equitable defense that ex4 pired before the date of enactment of this Act. 

5 (3) LIMITATION.—Nothing in this section pre6 cludes the tolling of any period of limitations or any 

7 time-based equitable defense under any other appli8 cable law. 

9 SEC. 11. MISCELLANEOUS PROVISIONS. 

10 (a) PRECEDENT.—Nothing in this Act establishes 

11 any standard for the quantification or litigation of Federal 

12 reserved water rights or any other Indian water claims of 

13 any other Indian tribes in any other judicial or administra14 tive proceeding. 

15 (b) OTHER INDIAN TRIBES.—Nothing in the agree16 ment or this Act shall be construed in any way to quantify 

17 or otherwise adversely affect the water rights, claims, or 

18 entitlements to water of any Indian tribe, band, or com19 munity, other than the Navajo Nation. 

20 SEC. 12. AVAILABILITY OF FUNDS. 

21 If insufficient funds are appropriated to carry out 

22 this Act for a fiscal year, the Secretary may use to carry 

23 out this Act such amounts as are necessary from other 

24 amounts available to the Secretary for that fiscal year that 

25 are not otherwise obligated. 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Navajo Utah Water 

3 Rights Settlement Act of 2018’’. 

4 SEC. 2. PURPOSES. 

5 The purposes of this Act are— 

6 (1) to achieve a fair, equitable, and final settle7 ment of all claims to water rights in the State of 

8 Utah for— 

9 (A) the Navajo Nation; and 

10 (B) the United States, for the benefit of the 

11 Nation; 

12 (2) to authorize, ratify, and confirm the Agree13 ment entered into by the Nation and the State, to the 

14 extent that the Agreement is consistent with this Act; 

15 (3) to authorize and direct the Secretary— 

16 (A) to execute the Agreement; and 

17 (B) to take any actions necessary to carry 

18 out the agreement in accordance with this Act; 

19 and 

20 (4) to authorize funds necessary for the imple21 mentation of the Agreement and this Act. 

22 SEC. 3. DEFINITIONS. 

23 In this Act: 

24 (1) AGREEMENT.—The term ‘‘agreement’’ 

25 means— 


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1 (A) the document entitled ‘‘Navajo Utah 

2 Water Rights Settlement Agreement’’ dated De3 cember 14, 2015, and the exhibits attached there4 to; and 

5 (B) any amendment or exhibit to the docu6 ment or exhibits referenced in subparagraph (A) 

7 to make the document or exhibits consistent with 

8 this Act. 

9 (2) ALLOTMENT.—The term ‘‘allotment’’ means a 

10 parcel of land— 

11 (A) granted out of the public domain that 

12 is— 

13 (i) located within the exterior bound14 aries of the Reservation; or 

15 (ii) Bureau of Indian Affairs parcel 

16 number 792 634511 in San Juan County, 

17 Utah, consisting of 160 acres located in 

18 Township 41S, Range 20E, sections 11, 12, 

19 and 14, originally set aside by the United 

20 States for the benefit of an individual iden21 tified in the allotting document as a Navajo 

22 Indian; and 

23 (B) held in trust by the United States— 


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1 (i) for the benefit of an individual, in2 dividuals, or an Indian tribe other than the 

3 Navajo Nation; or 

4 (ii) in part for the benefit of the Nav5 ajo Nation as of the enforceability date. 

6 (3) ALLOTTEE.—The term ‘‘allottee’’ means an 

7 individual or Indian tribe with a beneficial interest 

8 in an allotment held in trust by the United States. 

9 (4) ENFORCEABILITY DATE.—The term ‘‘enforce10 ability date’’ means the date on which the Secretary 

11 publishes in the Federal Register the statement of 

12 findings described in section 8(a). 

13 (5) GENERAL STREAM ADJUDICATION.—The term 

14 ‘‘general stream adjudication’’ means the adjudica15 tion pending, as of the date of enactment, in the Sev16 enth Judicial District in and for Grand County, 

17 State of Utah, commonly known as the ‘‘Southeastern 

18 Colorado River General Adjudication’’, Civil No. 

19 810704477, conducted pursuant to State law. 

20 (6) INJURY TO WATER RIGHTS.—The term ‘‘in21 jury to water rights’’ means an interference with, 

22 diminution of, or deprivation of water rights under 

23 Federal or State law, excluding injuries to water 

24 quality. 


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1 (7) MEMBER.—The term ‘‘member’’ means any 

2 person who is a duly enrolled member of the Navajo 

3 Nation. 

4 (8) NAVAJO NATION OR NATION.—The term 

5 ‘‘Navajo Nation’’ or ‘‘Nation’’ means a body politic 

6 and Federally recognized Indian nation, as published 

7 on the list established under section 104(a) of the Fed8 erally Recognized Indian Tribe List Act of 1994 (25 

9 U.S.C. 5131(a)), also known variously as the ‘‘Navajo 

10 Nation’’, the ‘‘Navajo Nation of Arizona, New Mexico, 

11 & Utah’’, and the ‘‘Navajo Nation of Indians’’ and 

12 other similar names, and includes all bands of Navajo 

13 Indians and chapters of the Navajo Nation and all 

14 divisions, agencies, officers, and agents thereof. 

15 (9) NAVAJO WATER DEVELOPMENT PROJECTS.— 

16 The term ‘‘Navajo water development projects’’ means 

17 projects for domestic municipal water supply, includ18 ing distribution infrastructure and agricultural water 

19 conservation, to be constructed, in whole or in part, 

20 using monies from the Navajo Water Development 

21 Projects Account. 

22 (10) NAVAJO WATER RIGHTS.—The term ‘‘Navajo 

23 water rights’’ means the Nation’s water rights in 

24 Utah described in the agreement and this Act. 


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1 (11) OM&R.—The term ‘‘OM&R’’ means oper2 ation, maintenance, and replacement. 

3 (12) PARTIES.—The term ‘‘parties’’ means the 

4 Navajo Nation, the State, and the United States. 

5 (13) RESERVATION.—The term ‘‘Reservation’’ 

6 means, for purposes of the agreement and this Act, the 

7 Reservation of the Navajo Nation in Utah as in exist8 ence on the date of enactment of this Act and depicted 

9 on the map attached to the agreement as Exhibit A, 

10 including any parcel of land granted out of the public 

11 domain and held in trust by the United States en12 tirely for the benefit of the Navajo Nation as of the 

13 enforceability date. 

14 (14) SECRETARY.—The term ‘‘Secretary’’ means 

15 the Secretary of the United States Department of the 

16 Interior or a duly authorized representative thereof. 

17 (15) STATE.—The term ‘‘State’’ means the State 

18 of Utah and all officers, agents, departments, and po19 litical subdivisions thereof. 

20 (16) UNITED STATES.—The term ‘‘United 

21 States’’ means the United States of America and all 

22 departments, agencies, bureaus, officers, and agents 

23 thereof. 

24 (17) UNITED STATES ACTING IN ITS TRUST CA25 PACITY.—The term ‘‘United States acting in its trust 


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1 capacity’’ means the United States acting for the ben2 efit of the Navajo Nation or for the benefit of allottees. 

3 SEC. 4. RATIFICATION OF AGREEMENT. 

4 (a) APPROVAL BY CONGRESS.—Except to the extent 

5 that any provision of the agreement conflicts with this Act, 

6 Congress approves, ratifies, and confirms the agreement (in7 cluding any amendments to the agreement that are executed 

8 to make the agreement consistent with this Act). 

9 (b) EXECUTION BY SECRETARY.—The Secretary is au10 thorized and directed to promptly execute the agreement to 

11 the extent that the agreement does not conflict with this Act, 

12 including— 

13 (1) any exhibits to the agreement requiring the 

14 signature of the Secretary; and 

15 (2) any amendments to the agreement necessary 

16 to make the agreement consistent with this Act. 

17 (c) ENVIRONMENTAL COMPLIANCE.— 

18 (1) IN GENERAL.—In implementing the agree19 ment and this Act, the Secretary shall comply with 

20 all applicable provisions of— 

21 (A) the Endangered Species Act of 1973 (16 

22 U.S.C. 1531 et seq.); 

23 (B) the National Environmental Policy Act 

24 of 1969 (42 U.S.C. 4321 et seq.); and 


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1 (C) all other applicable environmental laws 

2 and regulations. 

3 (2) EXECUTION OF THE AGREEMENT.—Execu4 tion of the agreement by the Secretary as provided for 

5 in this Act shall not constitute a major Federal action 

6 under the National Environmental Policy Act of 1969 

7 (42 U.S.C. 4321 et seq.). 

8 SEC. 5. NAVAJO WATER RIGHTS. 

9 (a) CONFIRMATION OF NAVAJO WATER RIGHTS.— 

10 (1) QUANTIFICATION.—The Navajo Nation shall 

11 have the right to use water from water sources located 

12 within Utah and adjacent to or encompassed within 

13 the boundaries of the Reservation resulting in deple14 tions not to exceed 81,500 acre-feet annually as de15 scribed in the agreement and as confirmed in the de16 cree entered by the general stream adjudication court. 

17 (2) SATISFACTION OF ALLOTTEE RIGHTS.—De18 pletions resulting from the use of water on an allot19 ment shall be accounted for as a depletion by the Nav20 ajo Nation for purposes of depletion accounting under 

21 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 subsequently reflected in the hydrographic survey 

25 report referenced in section 7(b); 


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1 (B) reasonable domestic and stock water 

2 uses put into use on an allotment; and 

3 (C) any allotment water rights that may be 

4 decreed in the general stream adjudication or 

5 other appropriate forum. 

6 (3) SATISFACTION OF ON-RESERVATION STATE

7 LAW-BASED WATER RIGHTS.—Depletions resulting 

8 from the use of water on the Reservation pursuant to 

9 State law-based water rights existing as of the date of 

10 enactment of this Act shall be accounted for as deple11 tions by the Navajo Nation for purposes of depletion 

12 accounting under the agreement. 

13 (4) IN GENERAL.—The Navajo water rights are 

14 ratified, confirmed, and declared to be valid. 

15 (5) USE.—Any use of the Navajo water rights 

16 shall be subject to the terms and conditions of the 

17 agreement and this Act. 

18 (6) CONFLICT.—In the event of a conflict between 

19 the agreement and this Act, the provisions of this Act 

20 shall control. 

21 (b) TRUST STATUS OF NAVAJO WATER RIGHTS.—The 

22 Navajo water rights— 

23 (1) shall be held in trust by the United States for 

24 the use and benefit of the Nation in accordance with 

25 the agreement and this Act; and 


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1 (2) shall not be subject to forfeiture or abandon2 ment. 

3 (c) AUTHORITY OF THE NATION.— 

4 (1) IN GENERAL.—The Nation shall have the au5 thority to allocate, distribute, and lease the Navajo 

6 water rights for any use on the Reservation in accord7 ance with the agreement, this Act, and applicable 

8 tribal and Federal law. 

9 (2) OFF-RESERVATION USE.—The Nation may 

10 allocate, distribute, and lease the Navajo water rights 

11 for off-Reservation use in accordance with the agree12 ment, subject to the approval of the Secretary. 

13 (3) ALLOTTEE WATER RIGHTS.—The Nation 

14 shall not object in the general stream adjudication or 

15 other applicable forum to the quantification of rea16 sonable domestic and stock water uses on an allot17 ment, and shall administer any water use on the Res18 ervation in accordance with applicable Federal law, 

19 including recognition of— 

20 (A) any water use existing on an allotment 

21 as of the date of enactment of this Act and as 

22 subsequently reflected in the hydrographic survey 

23 report referenced in section 7(b); 

24 (B) reasonable domestic and stock water 

25 uses on an allotment; and 


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1 (C) any allotment water rights decreed in 

2 the general stream adjudication or other appro3 priate forum. 

4 (d) EFFECT.—Except as otherwise expressly provided 

5 in this section, nothing in this Act— 

6 (1) authorizes any action by the Nation against 

7 the United States under Federal, State, tribal, or 

8 local law; or 

9 (2) alters or affects the status of any action 

10 brought pursuant to section 1491(a) of title 28, 

11 United States Code. 

12 SEC. 6. NAVAJO TRUST ACCOUNTS. 

13 (a) ESTABLISHMENT.—The Secretary shall establish a 

14 trust fund, to be known as the ‘‘Navajo Utah Settlement 

15 Trust Fund’’ (referred to in this Act as the ‘‘Trust Fund’’), 

16 to be managed, invested, and distributed by the Secretary 

17 and to remain available until expended, consisting of the 

18 amounts deposited in the Trust Fund under subsection (c), 

19 together with any interest earned on those amounts, for the 

20 purpose of carrying out this Act. 

21 (b) ACCOUNTS.—The Secretary shall establish in the 

22 Trust Fund the following Accounts: 

23 (1) The Navajo Water Development Projects Ac24 count. 

25 (2) The Navajo OM&R Account. 


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1 (c) DEPOSITS.—The Secretary shall deposit in the 

2 Trust Fund Accounts— 

3 (1) in the Navajo Water Development Projects 

4 Account, the amounts made available pursuant to sec5 tion 7(a)(1); and 

6 (2) in the Navajo OM&R Account, the amount 

7 made available pursuant to section 7(a)(2). 

8 (d) MANAGEMENT AND INTEREST.— 

9 (1) MANAGEMENT.—Upon receipt and deposit of 

10 the funds into the Trust Fund Accounts, the Secretary 

11 shall manage, invest, and distribute all amounts in 

12 the Trust Fund in a manner that is consistent with 

13 the investment authority of the Secretary under— 

14 (A) the first section of the Act of June 24, 

15 1938 (25 U.S.C. 162a); 

16 (B) the American Indian Trust Fund Man17 agement Reform Act of 1994 (25 U.S.C. 4001 et 

18 seq.); and 

19 (C) this section. 

20 (2) INVESTMENT EARNINGS.—In addition to the 

21 deposits under subsection (c), any investment earn22 ings, including interest, credited to amounts held in 

23 the Trust Fund are authorized to be appropriated to 

24 be used in accordance with the uses described in sub25 section (h). 


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1 (e) AVAILABILITY OF AMOUNTS.—Amounts appro2 priated to, and deposited in, the Trust Fund, including any 

3 investment earnings, shall be made available to the Nation 

4 by the Secretary beginning on the enforceability date and 

5 subject to the uses and restrictions set forth in this section. 

6 (f) WITHDRAWALS.— 

7 (1) WITHDRAWALS UNDER THE AMERICAN IN8 DIAN TRUST FUND MANAGEMENT REFORM ACT OF

9 1994.—The Nation may withdraw any portion of the 

10 funds in the Trust Fund on approval by the Sec11 retary of a tribal management plan submitted by the 

12 Nation in accordance with the American Indian 

13 Trust Fund Management Reform Act of 1994 (25 

14 U.S.C. 4001 et seq.). 

15 (A) REQUIREMENTS.—In addition to the re16 quirements under the American Indian Trust 

17 Fund Management Reform Act of 1994 (25 

18 U.S.C. 4001 et seq.), the tribal management plan 

19 under this paragraph shall require that the Na20 tion shall spend all amounts withdrawn from the 

21 Trust Fund and any investment earnings ac22 crued through the investments under the tribal 

23 management plan in accordance with this Act. 

24 (B) ENFORCEMENT.—The Secretary may 

25 carry out such judicial and administrative acVerDate Sep 11 2014 23:57 Nov 29, 2018 Jkt 089200 PO 00000 Frm 00042 Fmt 6652 Sfmt 6203 E:\BILLS\S664.RS S664

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1 tions as the Secretary determines to be necessary 

2 to enforce the tribal management plan to ensure 

3 that amounts withdrawn by the Nation from the 

4 Trust Fund under this paragraph are used in 

5 accordance with this Act. 

6 (2) WITHDRAWALS UNDER EXPENDITURE

7 PLAN.—The Nation may submit to the Secretary a re8 quest to withdraw funds from the Trust Fund pursu9 ant to an approved expenditure plan. 

10 (A) REQUIREMENTS.—To be eligible to 

11 withdraw funds under an expenditure plan 

12 under this paragraph, the Nation shall submit to 

13 the Secretary for approval an expenditure plan 

14 for any portion of the Trust Fund that the Na15 tion elects to withdraw pursuant to this para16 graph, subject to the condition that the funds 

17 shall be used for the purposes described in this 

18 Act. 

19 (B) INCLUSIONS.—An expenditure plan 

20 under this paragraph shall include a description 

21 of the manner and purpose for which the 

22 amounts proposed to be withdrawn from the 

23 Trust Fund will be used by the Nation, in ac24 cordance with subsections (c) and (h). 


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1 (C) APPROVAL.—On receipt of an expendi2 ture plan under this paragraph, the Secretary 

3 shall approve the plan, if the Secretary deter4 mines that the plan— 

5 (i) is reasonable; 

6 (ii) is consistent with, and will be used 

7 for, the purposes of this Act; and 

8 (iii) contains a schedule which de9 scribed that tasks will be completed within 

10 18 months of receipt of withdrawn amounts. 

11 (D) ENFORCEMENT.—The Secretary may 

12 carry out such judicial and administrative ac13 tions as the Secretary determines to be necessary 

14 to enforce an expenditure plan to ensure that 

15 amounts disbursed under this paragraph are 

16 used in accordance with this Act. 

17 (g) EFFECT OF TITLE.—Nothing in this Act gives the 

18 Nation the right to judicial review of a determination of 

19 the Secretary regarding whether to approve a tribal man20 agement plan or an expenditure plan except under sub21 chapter II of chapter 5, and chapter 7, of title 5, United 

22 States Code (commonly known as the ‘‘Administrative Pro23 cedure Act’’). 

24 (h) USES.—Amounts from the Trust Fund shall be 

25 used by the Nation for the following purposes: 


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1 (1) The Navajo Water Development Projects Ac2 count shall be used to plan, design, and construct the 

3 Navajo water development projects and for the con4 duct of related activities, including to comply with 

5 Federal environmental laws. 

6 (2) The Navajo OM&R Account shall be used for 

7 the operation, maintenance, and replacement of the 

8 Navajo water development projects. 

9 (i) LIABILITY.—The Secretary and the Secretary of the 

10 Treasury shall not be liable for the expenditure or invest11 ment of any amounts withdrawn from the Trust Fund by 

12 the Nation under subsection (f). 

13 (j) NO PER CAPITA DISTRIBUTIONS.—No portion of 

14 the Trust Fund shall be distributed on a per capita basis 

15 to any member of the Nation. 

16 (k) EXPENDITURE REPORTS.—The Navajo Nation 

17 shall submit to the Secretary annually an expenditure re18 port describing accomplishments and amounts spent from 

19 use of withdrawals under a tribal management plan or an 

20 expenditure plan as described in this Act. 

21 SEC. 7. AUTHORIZATION OF APPROPRIATIONS. 

22 (a) AUTHORIZATION.—There are authorized to be ap23 propriated to the Secretary— 

24 (1) for deposit in the Navajo Water Development 

25 Projects Account of the Trust Fund established under 


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1 section 6(b)(1), $198,300,000, which funds shall be re2 tained until expended, withdrawn, or reverted to the 

3 general fund of the Treasury; and 

4 (2) for deposit in the Navajo OM&R Account of 

5 the Trust Fund established under section 6(b)(2), 

6 $11,100,000, which funds shall be retained until ex7 pended, withdrawn, or reverted to the general fund of 

8 the Treasury. 

9 (b) IMPLEMENTATION COSTS.—There is authorized to 

10 be appropriated non-trust funds in the amount of 

11 $1,000,000 to assist the United States with costs associated 

12 with the implementation of the Act, including the prepara13 tion of a hydrographic survey of historic and existing water 

14 uses on the Reservation and on allotments. 

15 (c) STATE COST SHARE.—The State shall contribute 

16 $8,000,000 payable to the Secretary for deposit into the 

17 Navajo Water Development Projects Account of the Trust 

18 Fund established under section 6(b)(1) in installments in 

19 each of the 3 years following the execution of the agreement 

20 by the Secretary as provided for in subsection (b) of section 

21 4. 

22 (d) FLUCTUATION IN COSTS.—The amount authorized 

23 to be appropriated under subsection (a) shall be increased 

24 or decreased, as appropriate, by such amounts as may be 

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1 ring after the date of enactment of this Act as indicated 

2 by the Bureau of Reclamation Construction Cost Index— 

3 Composite Trend. 

4 (1) REPETITION.—The adjustment process under 

5 this subsection shall be repeated for each subsequent 

6 amount appropriated until the amount authorized, as 

7 adjusted, has been appropriated. 

8 (2) PERIOD OF INDEXING.—The period of index9 ing adjustment for any increment of funding shall 

10 end on the date on which funds are deposited into the 

11 Trust Fund. 

12 SEC. 8. CONDITIONS PRECEDENT. 

13 (a) IN GENERAL.—The waivers and release contained 

14 in section 9 of this Act shall become effective as of the date 

15 the Secretary causes to be published in the Federal Register 

16 a statement of findings that— 

17 (1) to the extent that the agreement conflicts with 

18 the Act, the agreement has been revised to conform 

19 with this Act; 

20 (2) the agreement, so revised, including waivers 

21 and releases of claims set forth in section 9, has been 

22 executed by the parties, including the United States; 

23 (3) Congress has fully appropriated, or the Sec24 retary has provided from other authorized sources, all 

25 funds authorized under subsection (a) of section 7; 


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1 (4) the State has enacted any necessary legisla2 tion and provided the funding required under the 

3 agreement and subsection (c) of section 7; and 

4 (5) the court has entered a final or interlocutory 

5 decree that— 

6 (A) confirms the Navajo water rights con7 sistent with the agreement and this Act; and 

8 (B) with respect to the Navajo water rights, 

9 is final and nonappealable. 

10 (b) EXPIRATION DATE.—If all the conditions precedent 

11 described in subsection (a) have not been fulfilled to allow 

12 the Secretary’s statement of findings to be published in the 

13 Federal Register by October 31, 2030— 

14 (1) the agreement and this Act, including waiv15 ers and releases of claims described in those docu16 ments, shall no longer be effective; 

17 (2) any funds that have been appropriated pur18 suant to section 7 but not expended, including any 

19 investment earnings on funds that have been appro20 priated pursuant to such section, shall immediately 

21 revert to the general fund of the Treasury; and 

22 (3) any funds contributed by the State pursuant 

23 to subsection (c) of section 7 but not expended shall 

24 be returned immediately to the State. 


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1 (c) EXTENSION.—The expiration date set forth in sub2 section (b) may be extended if the Navajo Nation, the State, 

3 and the United States (acting through the Secretary) agree 

4 that an extension is reasonably necessary. 

5 SEC. 9. WAIVERS AND RELEASES. 

6 (a) IN GENERAL.— 

7 (1) WAIVER AND RELEASE OF CLAIMS BY THE

8 NATION AND THE UNITED STATES ACTING IN ITS CA9 PACITY AS TRUSTEE FOR THE NATION.—Subject to the 

10 retention of rights set forth in subsection (c), in re11 turn for confirmation of the Navajo water rights and 

12 other benefits set forth in the agreement and this Act, 

13 the Nation, on behalf of itself and the members of the 

14 Nation (other than members in their capacity as 

15 allottees), and the United States, acting as trustee for 

16 the Nation and members of the Nation (other than 

17 members in their capacity as allottees), are author18 ized and directed to execute a waiver and release of— 

19 (A) all claims for water rights within Utah 

20 based on any and all legal theories that the Nav21 ajo Nation or the United States acting in its 

22 trust capacity for the Nation, asserted, or could 

23 have asserted, at any time in any proceeding, in24 cluding to the general stream adjudication, up to 

25 and including the enforceability date, except to 


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1 the extent that such rights are recognized in the 

2 agreement and this Act; and 

3 (B) all claims for damages, losses, or inju4 ries to water rights or claims of interference 

5 with, diversion, or taking of water rights (in6 cluding claims for injury to lands resulting from 

7 such damages, losses, injuries, interference with, 

8 diversion, or taking of water rights) within Utah 

9 against the State, or any person, entity, corpora10 tion, or municipality, that accrued at any time 

11 up to and including the enforceability date. 

12 (b) CLAIMS BY THE NAVAJO NATION AGAINST THE

13 UNITED STATES.—The Navajo Nation, on behalf of itself 

14 (including in its capacity as allottee) and its members 

15 (other than members in their capacity as allottees), shall 

16 execute a waiver and release of— 

17 (1) all claims the Navajo Nation may have 

18 against the United States relating in any manner to 

19 claims for water rights in, or water of, Utah that the 

20 United States acting in its trust capacity for the Na21 tion asserted, or could have asserted, in any pro22 ceeding, including the general stream adjudication; 

23 (2) all claims the Navajo Nation may have 

24 against the United States relating in any manner to 

25 damages, losses, or injuries to water, water rights, 


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1 land, or other resources due to loss of water or water 

2 rights (including damages, losses, or injuries to hunt3 ing, fishing, gathering, or cultural rights due to loss 

4 of water or water rights; claims relating to inter5 ference with, diversion, or taking of water; or claims 

6 relating to failure to protect, acquire, replace, or de7 velop water or water rights) within Utah that first 

8 accrued at any time up to and including the enforce9 ability date; 

10 (3) all claims the Nation may have against the 

11 United States relating in any manner to the litiga12 tion of claims relating to the Nation’s water rights in 

13 proceedings in Utah; and 

14 (4) all claims the Nation may have against the 

15 United States relating in any manner to the negotia16 tion, execution, or adoption of the agreement or this 

17 Act. 

18 (c) RESERVATION OF RIGHTS AND RETENTION OF

19 CLAIMS BY THE NAVAJO NATION AND THE UNITED

20 STATES.—Notwithstanding the waivers and releases au21 thorized in this Act, the Navajo Nation, and the United 

22 States acting in its trust capacity for the Nation, retain— 

23 (1) all claims for injuries to and the enforcement 

24 of the agreement and the final or interlocutory decree 

25 entered in the general stream adjudication, through 


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1 such legal and equitable remedies as may be available 

2 in the decree court or the Federal District Court for 

3 the District of Utah; 

4 (2) all rights to use and protect water rights ac5 quired after the enforceability date; 

6 (3) all claims relating to activities affecting the 

7 quality of water, including any claims under the 

8 Comprehensive Environmental Response, Compensa9 tion, and Liability Act of 1980 (42 U.S.C. 9601 et 

10 seq. (including claims for damages to natural re11 sources)), the Safe Drinking Water Act (42 U.S.C. 

12 300f et seq.), and the Federal Water Pollution Control 

13 Act (33 U.S.C. 1251 et seq.), the regulations imple14 menting those Acts, and the common law; 

15 (4) all claims for water rights, and claims for 

16 injury to water rights, in states other than the State 

17 of Utah; 

18 (5) all claims, including environmental claims, 

19 under any laws (including regulations and common 

20 law) relating to human health, safety, or the environ21 ment; and 

22 (6) all rights, remedies, privileges, immunities, 

23 and powers not specifically waived and released pur24 suant to the agreement and this Act. 

25 (d) EFFECT.—Nothing in the agreement or this Act— 


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1 (1) affects the ability of the United States acting 

2 in its sovereign capacity to take actions authorized by 

3 law, including any laws relating to health, safety, or 

4 the environment, including the Comprehensive Envi5 ronmental Response, Compensation, and Liability 

6 Act of 1980 (42 U.S.C. 9601 et seq.), the Safe Drink7 ing Water Act (42 U.S.C. 300f et seq.), the Federal 

8 Water Pollution Control Act (33 U.S.C. 1251 et seq.), 

9 the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.), 

10 and the regulations implementing those laws; 

11 (2) affects the ability of the United States to take 

12 actions in its capacity as trustee for any other Indian 

13 tribe or allottee; 

14 (3) confers jurisdiction on any State court to— 

15 (A) interpret Federal law regarding health, 

16 safety, or the environment or determine the du17 ties of the United States or other parties pursu18 ant to such Federal law; and 

19 (B) conduct judicial review of Federal agen20 cy action; or 

21 (4) modifies, conflicts with, preempts, or other22 wise affects— 

23 (A) the Boulder Canyon Project Act (43 

24 U.S.C. 617 et seq.); 


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1 (B) the Boulder Canyon Project Adjustment 

2 Act (54 Stat. 774, chapter 643); 

3 (C) the Act of April 11, 1956 (commonly 

4 known as the ‘‘Colorado River Storage Project 

5 Act’’) (43 U.S.C. 620 et seq.); 

6 (D) the Act of September 30, 1968 (com7 monly known as the ‘‘Colorado River Basin 

8 Project Act’’) (82 Stat. 885); 

9 (E) the Treaty between the United States of 

10 America and Mexico respecting utilization of 

11 waters of the Colorado and Tijuana Rivers and 

12 of the Rio Grande, signed at Washington Feb13 ruary 3, 1944 (59 Stat. 1219); 

14 (F) the Colorado River Compact of 1922, as 

15 approved by the Presidential Proclamation of 

16 June 25, 1929 (46 Stat. 3000); and 

17 (G) the Upper Colorado River Basin Com18 pact as consented to by the Act of April 6, 1949 

19 (63 Stat. 31, chapter 48). 

20 (e) TOLLING OF CLAIMS.— 

21 (1) IN GENERAL.—Each applicable period of 

22 limitation and time-based equitable defense relating 

23 to a claim waived by the Navajo Nation described in 

24 this section shall be tolled for the period beginning on 


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1 the date of enactment of this Act and ending on the 

2 enforceability date. 

3 (2) EFFECT OF SUBSECTION.—Nothing in this 

4 subsection revives any claim or tolls any period of 

5 limitation or time-based equitable defense that ex6 pired before the date of enactment of this Act. 

7 (3) LIMITATION.—Nothing in this section pre8 cludes the tolling of any period of limitations or any 

9 time-based equitable defense under any other applica10 ble law. 

11 SEC. 10. MISCELLANEOUS PROVISIONS. 

12 (a) PRECEDENT.—Nothing in this Act establishes any 

13 standard for the quantification or litigation of Federal re14 served water rights or any other Indian water claims of 

15 any other Indian tribe in any other judicial or administra16 tive proceeding. 

17 (b) OTHER INDIAN TRIBES.—Nothing in the agree18 ment or this Act shall be construed in any way to quantify 

19 or otherwise adversely affect the water rights, claims, or en20 titlements to water of any Indian tribe, band, or commu21 nity, other than the Navajo Nation. 

22 SEC. 11. RELATION TO ALLOTTEES. 

23 (a) NO EFFECT ON CLAIMS OF ALLOTTEES.—Nothing 

24 in this Act or the agreement shall affect the rights or claims 

25 of allottees, or the United States, acting in its capacity as 


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1 trustee for or on behalf of allottees, for water rights or dam2 ages related to lands allotted by the United States to 

3 allottees, except as provided in section 5(a)(2). 

4 (b) RELATIONSHIP OF DECREE TO ALLOTTEES.— 

5 Allottees, or the United States, acting in its capacity as 

6 trustee for allottees, are not bound by any decree entered 

7 in the general stream adjudication confirming the Navajo 

8 water rights and shall not be precluded from making claims 

9 to water rights in the general stream adjudication. Allottees, 

10 or the United States, acting in its capacity for allottees, 

11 may make claims and such claims may be adjudicated as 

12 individual water rights in the general stream adjudication. 

13 SEC. 12. ANTIDEFICIENCY. 

14 The United States shall not be liable for any failure 

15 to carry out any obligation or activity authorized by this 

16 Act (including any obligation or activity under the agree17 ment) if adequate appropriations are not provided ex18 pressly by Congress to carry out the purposes of this Act. 

Amend the title so as to read: ‘‘A bill to approve the 

settlement of the water rights claims of the Navajo Nation in Utah, and for other purposes.’’. 


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Calendar No. 706 

115TH CONGRESS 

2D SESSION S. 664 

[Report No. 115–401] 

A BILL 

To approve the settlement of the water rights 

with, and for other purposes. ize construction of projects in connection thereclaims of the Navajo Nation in Utah, to authorNOVEMBER 29, 2018 

Reported with an amendment and an amendment to the 

title 


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