89–006

106TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 106–1001

COLORADO UTE SETTLEMENT ACT AMENDMENTS OF 2000

OCTOBER 25, 2000.—Committed to the Committee of the Whole House on the State

of the Union and ordered to be printed

Mr. YOUNG of Alaska, from the Committee on Resources,

submitted the following

R E P O R T

[To accompany H.R. 3112]

[Including cost estimate of the Congressional Budget Office]

The Committee on Resources, to whom was referred the bill

(H.R. 3112) to amend the Colorado Ute Indian Water Rights Settlement Act to provide for a final settlement of the claims of the Colorado Ute Indian Tribes, and for other purposes, having considered

the same, report favorably thereon with an amendment and recommend that the bill as amended do pass.

The amendment is as follows:

Strike all after the enacting clause and insert the following:

SECTION 1. SHORT TITLE; FINDINGS; DEFINITIONS.

(a) SHORT TITLE.—This Act may be cited as the ‘‘Colorado Ute Settlement Act

Amendments of 2000’’.

(b) FINDINGS.—Congress makes the following findings:

(1) In order to provide for a full and final settlement of the claims of the Colorado Ute Indian Tribes on the Animas and La Plata Rivers, the Tribes, the

State of Colorado, and certain of the non-Indian parties to the Agreement have

proposed certain modifications to the Colorado Ute Indian Water Rights Settlement Act of 1988 (Public Law 100–585; 102 Stat. 2973).

(2) The claims of the Colorado Ute Indian Tribes on all rivers in Colorado

other than the Animas and La Plata Rivers have been settled in accordance

with the provisions of the Colorado Ute Indian Water Rights Settlement Act of

1988 (Public Law 100–585; 102 Stat. 2973).

(3) The Indian and non-Indian communities of southwest Colorado and northwest New Mexico will be benefited by a settlement of the tribal claims on the

Animas and La Plata Rivers that provides the Tribes with a firm water supply

without taking water away from existing uses.

(4) The Agreement contemplated a specific timetable for the delivery of irrigation and municipal and industrial water and other benefits to the Tribes from

the Animas-La Plata Project, which timetable has not been met. The provision

of irrigation water can not presently be satisfied under the current implementation of the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) and the

Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).
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(5) In order to meet the requirements of the Endangered Species Act of 1973

(16 U.S.C. 1531 et seq.), and in particular the various biological opinions issued

by the Fish and Wildlife Service, the amendments made by this Act are needed

to provide for a significant reduction in the facilities and water supply contemplated under the Agreement.

(6) The substitute benefits provided to the Tribes under the amendments

made by this Act, including the waiver of capital costs and the provisions of

funds for natural resource enhancement, result in a settlement that provides

the Tribes with benefits that are equivalent to those that the Tribes would have

received under the Colorado Ute Indian Water Rights Settlement Act of 1988

(Public Law 100–585; 102 Stat. 2973).

(7) The requirement that the Secretary of the Interior comply with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and other national environmental laws before implementing the proposed settlement will ensure that the satisfaction of the tribal water rights is accomplished in an environmentally responsible fashion.

(8) Federal courts have considered the nature and the extent of Congressional

participation when reviewing Federal compliance with the requirements of the

National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

(9) In considering the full range of alternatives for satisfying the water rights

claims of the Southern Ute Indian Tribe and Ute Mountain Ute Indian Tribe,

Congress has held numerous legislative hearings and deliberations, and reviewed the considerable record including the following documents:

(A) The Final EIS No. INT–FES–80–18, dated July 1, 1980.

(B) The Draft Supplement to the FES No. INT–DES–92–41, dated October 13, 1992.

(C) The Final Supplemental to the FES No. 96–23, dated April 26, 1996;

(D) The Draft Supplemental EIS, dated January 14, 2000.

(c) DEFINITIONS.—In this Act:

(1) AGREEMENT.—The term ‘‘Agreement’’ has the meaning given that term in

section 3(1) of the Colorado Ute Indian Water Rights Settlement Act of 1988

(Public Law 100–585; 102 Stat. 2973).

(2) ANIMAS-LA PLATA PROJECT.—The term ‘‘Animas-La Plata Project’’ has the

meaning given that term in section 3(2) of the Colorado Ute Indian Water

Rights Settlement Act of 1988 (Public Law 100–585; 102 Stat. 2973).

(3) DOLORES PROJECT.—The term ‘‘Dolores Project’’ has the meaning given

that term in section 3(3) of the Colorado Ute Indian Water Rights Settlement

Act of 1988 (Public Law 100–585; 102 Stat. 2974).

(4) TRIBE; TRIBES.—The term ‘‘tribe’’ or ‘‘tribes’’ has the meaning given that

term in section 3(6) of the Colorado Ute Indian Water Rights Settlement Act

of 1988 (Public Law 100–585; 102 Stat. 2974).

SEC. 2. AMENDMENTS TO SECTION 6 OF THE COLORADO UTE INDIAN WATER RIGHTS SETTLEMENT ACT OF 1988.

Subsection (a) of section 6 of the Colorado Ute Indian Water Rights Settlement

Act of 1988 (Public Law 100–585; 102 Stat. 2975) is amended to read as follows:

‘‘(a) RESERVOIR; MUNICIPAL AND INDUSTRIAL WATER.— ‘‘(1) FACILITIES.— ‘‘(A) IN GENERAL.—After the date of enactment of this subsection, but

prior to January 1, 2005, the Secretary, in order to settle the outstanding

claims of the Tribes on the Animas and La Plata Rivers, acting through the

Bureau of Reclamation, is specifically authorized to—

‘‘(i) complete construction of, and operate and maintain, a reservoir,

a pumping plant, a reservoir inlet conduit, and appurtenant facilities

with sufficient capacity to divert and store water from the Animas

River to provide for an average annual depletion of 57,100 acre-feet of

water to be used for a municipal and industrial water supply, which

facilities shall—

‘‘(I) be designed and operated in accordance with the hydrologic

regime necessary for the recovery of the endangered fish of the San

Juan River as determined by the San Juan River Recovery Implementation Program;

‘‘(II) include an inactive pool of an appropriate size to be determined by the Secretary following the completion of required environmental compliance activities; and

‘‘(III) include those recreation facilities determined to be appropriate by agreement between the State of Colorado and the Secretary that shall address the payment of any of the costs of such

facilities by the State of Colorado in addition to the costs described

in paragraph (3); and
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‘‘(ii) deliver, through the use of the project components referred to in

clause (i), municipal and industrial water allocations—

‘‘(I) with an average annual depletion not to exceed 16,525 acrefeet of water, to the Southern Ute Indian Tribe for its present and

future needs;

‘‘(II) with an average annual depletion not to exceed 16,525 acrefeet of water, to the Ute Mountain Ute Indian Tribe for its present

and future needs;

‘‘(III) with an average annual depletion not to exceed 2,340 acrefeet of water, to the Navajo Nation for its present and future

needs;

‘‘(IV) with an average annual depletion not to exceed 10,400 acrefeet of water, to the San Juan Water Commission for its present

and future needs;

‘‘(V) with an average annual depletion of an amount not to exceed 2,600 acre-feet of water, to the Animas-La Plata Conservancy

District for its present and future needs;

‘‘(VI) with an average annual depletion of an amount not to exceed 5,230 acre-feet of water, to the State of Colorado for its

present and future needs; and

‘‘(VII) with an average annual depletion of an amount not to exceed 780 acre-feet of water, to the La Plata Conservancy District

of New Mexico for its present and future needs.

‘‘(B) APPLICABILITY OF OTHER FEDERAL LAW.—The responsibilities of the

Secretary described in subparagraph (A) are subject to the requirements of

Federal laws related to the protection of the environment and otherwise applicable to the construction of the proposed facilities, including the National

Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), the Clean Water

Act (42 U.S.C. 7401 et seq.), and the Endangered Species Act of 1973 (16

U.S.C. 1531 et seq.). Nothing in this Act shall be construed to predetermine

or otherwise affect the outcome of any analysis conducted by the Secretary

or any other Federal official under applicable laws.

‘‘(C) LIMITATION.—

‘‘(i) IN GENERAL.—If constructed, the facilities described in subparagraph (A) constitute the Animas-La Plata Project. Construction of any

other project features authorized by the Colorado River Basin Project

Act (Public Law 90–537; 82 Stat. 885) shall not be commenced without

further authorization from Congress.

‘‘(ii) CONTINGENCY IN APPLICATION.—If the facilities described in subparagraph (A) are not constructed and operated, clause (i) shall not

take effect.

‘‘(2) TRIBAL CONSTRUCTION COSTS.—Construction costs allocable to the facilities that are required to deliver the municipal and industrial water allocations

described in subclauses (I), (II) and (III) of paragraph (1)(A)(ii) shall be nonreimbursable to the United States.

‘‘(3) NONTRIBAL WATER CAPITAL OBLIGATIONS.—

‘‘(A) IN GENERAL.—Under the provisions of section 9 of the Act of August

4, 1939 (43 U.S.C. 485h), the nontribal municipal and industrial water capital repayment obligations for the facilities described in paragraph (1)(A)(i)

may be initially satisfied upon the payment in full of the nontribal water

capital obligations prior to the initiation of construction. The amount of the

obligations described in the preceding sentence shall be determined by

agreement between the Secretary of the Interior and the entity responsible

for such repayment as to the appropriate reimbursable share of the construction costs allocated to that entity’s municipal water supply. Such

agreement shall take into account the fact that the construction of facilities

to provide irrigation water supplies from the Animas-La Plata Project is not

authorized under paragraph (1)(A)(i) and no costs associated with the design or development of such facilities, including costs associated with environmental compliance, shall be allocable to the municipal and industrial

users of the facilities authorized under such paragraph.

‘‘(B) NONTRIBAL REPAYMENT OBLIGATION SUBJECT TO FINAL COST ALLOCATION.—The nontribal repayment obligation for the water supply identified

in paragraph (1)(A)(ii) shall be subject to a final cost allocation by the Secretary upon project completion. In the event that the final cost allocation

indicates that additional repayment is warranted based on the applicable

entity’s share of project water supply and determination of overall cost, that

entity may elect to enter into a new agreement to make the additional payment necessary to secure the original water supply identified in paragraph
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(1)(A)(ii). If the repayment entity elects not to enter into a new agreement,

the portion of the water supply relinquished by such election should be

available to the Secretary for allocation to other project purposes. Additional repayment shall only be warranted for reasonable and unforeseen

costs associated with project construction as determined by the Secretary

in consultation with the relevant repayment entities.

‘‘(C) REPORT.—Not later than April 1, 2001, the Secretary shall report to

Congress on the status of the cost-share agreements contemplated in subparagraph (A). In the event that no agreement is reached with either the

Animas-La Plata Conservancy District or the State of Colorado for the

water allocations set forth in subclauses (V) and (VI) of paragraph (1)(A)(ii),

those allocations shall be reallocated equally to the Colorado Ute Tribes.

‘‘(4) TRIBAL WATER ALLOCATIONS.—

‘‘(A) IN GENERAL.—With respect to municipal and industrial water allocated to a Tribe from the Animas-La Plata Project or the Dolores Project,

until that water is first used by a Tribe or used pursuant to a water use

contract with the Tribe, the Secretary shall pay the annual operation,

maintenance, and replacement costs allocable to that municipal and industrial water allocation of the Tribe.

‘‘(B) TREATMENT OF COSTS.—A Tribe shall not be required to reimburse

the Secretary for the payment of any cost referred to in subparagraph (A).

‘‘(5) REPAYMENT OF PRO RATA SHARE.—Upon a Tribe’s first use of an increment of a municipal and industrial water allocation described in paragraph (4),

or the Tribe’s first use of such water pursuant to the terms of a water use

contract—

‘‘(A) repayment of that increment’s pro rata share of those allocable construction costs for the Dolores Project shall be made by the Tribe; and

‘‘(B) the Tribe shall bear a pro rata share of the allocable annual operation, maintenance, and replacement costs of the increment as referred to

in paragraph (4).’’.

SEC. 3. MISCELLANEOUS.

The Colorado Ute Indian Water Rights Settlement Act of 1988 (Public Law 100–

585; 102 Stat. 2973) is amended by adding at the end the following:

‘‘SEC. 15. NEW MEXICO AND NAVAJO NATION WATER MATTERS.

‘‘(a) ASSIGNMENT OF WATER PERMIT.—Upon the request of the State Engineer of

the State of New Mexico, the Secretary shall, in a manner consistent with applicable

law, assign, without consideration, to the New Mexico Animas-La Plata Project

beneficiaries or to the New Mexico Interstate Stream Commission in accordance

with the request such portion of the Department of the Interior’s interest in New

Mexico Engineer Permit Number 2883, dated May 1, 1956, in order to fulfill the

New Mexico purposes of the Animas-La Plata Project, so long as the permit assignment does not affect the application of the Endangered Species Act of 1973 (16

U.S.C. 1531 et seq.) to the use of the water involved.

‘‘(b) NAVAJO NATION MUNICIPAL PIPELINE.—The Secretary may construct a water

line to augment the existing system that conveys the municipal water supplies, in

an amount not less than 4,680 acre-feet per year, of the Navajo Nation to the Navajo Indian Reservation at Shiprock, New Mexico. The Secretary shall comply with

all applicable environmental laws with respect to such water line. Construction

costs allocated to the Navajo Nation for such water line shall be nonreimbursable

to the United States.

‘‘(c) PROTECTION OF NAVAJO WATER CLAIMS.—Nothing in this Act shall be construed to quantify or otherwise adversely affect the water rights and the claims of

entitlement to water of the Navajo Nation.

‘‘SEC. 16. TRIBAL RESOURCE FUNDS.

‘‘(a) ESTABLISHMENT.—

‘‘(1) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to be appropriated to carry out this section, $8,000,000 per year for 5 fiscal years beginning

in fiscal year 2002. Not later than 60 days after amounts are appropriated and

available to the Secretary for a fiscal year under this paragraph, the Secretary

shall make a payment to each of the Tribal Resource Funds established under

paragraph (2). Each such payment shall be equal to 50 percent of the amount

appropriated for the fiscal year involved.

‘‘(2) FUNDS.—The Secretary shall establish a—

‘‘(A) Southern Ute Tribal Resource Fund; and

‘‘(B) Ute Mountain Ute Tribal Resource Fund.

A separate account shall be maintained for each such Fund.

‘‘(b) TRIBAL DEVELOPMENT.—
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‘‘(1) INVESTMENT.—The Secretary shall, in the absence of an approved tribal

investment plan provided for under paragraph (2), invest the amount in each

Tribal Resource Fund in accordance with the Act entitled, ‘An Act to authorize

the deposit and investment of Indian funds’ approved June 24, 1938 (25 U.S.C.

162a). The Secretary, subject to subsection (e), shall disburse, at the request of

a Tribe, the principal and income in its Resource Fund, or any part thereof, in

accordance with a resource acquisition and enhancement plan approved under

paragraph (3).

‘‘(2) INVESTMENT PLAN.—

‘‘(A) IN GENERAL.—In lieu of the investment provided for in paragraph (1),

a Tribe may submit a tribal investment plan applicable to all or part of the

Tribe’s Tribal Resource Fund.

‘‘(B) APPROVAL.—Not later than 60 days after the date on which an investment plan is submitted under subparagraph (A), the Secretary shall approve such investment plan if the Secretary finds that the plan is reasonable and sound. If the Secretary does not approve such investment plan, the

Secretary shall set forth in writing and with particularity the reasons for

such disapproval. If such investment plan is approved by the Secretary subject to subsection (e), the Tribal Resource Fund involved shall be disbursed

to the Tribe to be invested by the Tribe in accordance with the approved

investment plan.

‘‘(C) COMPLIANCE.—The Secretary may take such steps as the Secretary

determines to be necessary to monitor the compliance of a Tribe with an

investment plan approved under subparagraph (B). The United States shall

not be responsible for the review, approval, or audit of any individual investment under the plan. The United States shall not be directly or indirectly liable with respect to any such investment, including any act or omission of the Tribe in managing or investing such funds.

‘‘(D) ECONOMIC DEVELOPMENT PLAN.—The principal and income derived

from tribal investments under an investment plan approved under subparagraph (B) shall be subject to the provisions of this section and shall be expended only in accordance with an economic development plan approved

under paragraph (3).

‘‘(3) ECONOMIC DEVELOPMENT PLAN.—

‘‘(A) IN GENERAL.—Each Tribe shall submit to the Secretary a resource

acquisition and enhancement plan for all or any portion of its Tribal Resource Fund.

‘‘(B) APPROVAL.—Not later than 60 days after the date on which a plan

is submitted under subparagraph (A), the Secretary shall approve such investment plan if the Secretary finds that the plan is reasonably related to

the protection, acquisition, enhancement, or development of natural resources for the benefit of the Tribe and its members. If the Secretary does

not approve such plan, the Secretary shall, at the time of such determination, set forth in writing and with particularity the reasons for such disapproval.

‘‘(C) MODIFICATION.—Subject to the approval of the Secretary, each Tribe

may modify a plan approved under subparagraph (B).

‘‘(D) LIABILITY.—The United States shall not be directly or indirectly liable for any claim or cause of action arising from the approval of a plan

under this paragraph, or from the use and expenditure by the Tribe of the

principal or interest of the Funds.

‘‘(c) LIMITATION ON PER CAPITA DISTRIBUTIONS.—No part of the principal contained in the Tribal Resource Fund, or of the income accruing to such funds, or the

revenue from any water use contract, shall be distributed to any member of either

Tribe on a per capita basis.

‘‘(d) LIMITATION ON SETTING ASIDE FINAL CONSENT DECREE.—Neither the Tribes

nor the United States shall have the right to set aside the final consent decree solely because the requirements of subsection (b) are not complied with or implemented.

‘‘(e) LIMITATION ON DISBURSEMENT OF TRIBAL RESOURCE FUNDS.—Any moneys appropriated under this section shall be placed into the Southern Ute Tribal Resource

Fund and the Ute Mountain Ute Tribal Resource Fund in the Treasury of the

United States but shall not be available for disbursement under this section until

the final settlement of the tribal claims as provided in section 18. The Secretary of

the Interior may, in the Secretary’s sole discretion, authorize the disbursement of

funds prior to the final settlement in the event that the Secretary determines that

substantial portions of the settlement have been completed. In the event that the

funds are not disbursed under the terms of this section by December 31, 2012, such

funds shall be deposited in the general fund of the Treasury.
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‘‘SEC. 17. COLORADO UTE SETTLEMENT FUND.

‘‘(a) ESTABLISHMENT OF FUND.—There is hereby established within the Treasury

of the United States a fund to be known as the ‘Colorado Ute Settlement Fund’.

‘‘(b) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to be appropriated

to the Colorado Ute Settlement Fund such funds as are necessary to complete the

construction of the facilities described in section 6(a)(1)(A) within 7 years of the date

of enactment of this section. Such funds are authorized to be appropriated for each

of the first 5 fiscal years beginning with the first full fiscal year following the date

of enactment of this section.

‘‘SEC. 18. FINAL SETTLEMENT.

‘‘(a) IN GENERAL.—The construction of the facilities described in section 6(a)(1)(A),

the allocation of the water supply from those facilities to the Tribes as described

in that section, the provision of funds to the Tribes in accordance with section 16,

and the issuance of an amended final consent decree as contemplated in subsection

(c) shall constitute final settlement of the tribal claims to water rights on the

Animas and La Plata Rivers in the State of Colorado.

‘‘(b) STATUTORY CONSTRUCTION.—Nothing in this section shall be construed to affect the right of the Tribes to water rights on the streams and rivers described in

the Agreement, other than the Animas and La Plata Rivers, to receive the amounts

of water dedicated to tribal use under the Agreement, or to acquire water rights

under the laws of the State of Colorado.

‘‘(c) ACTION BY THE ATTORNEY GENERAL.—The Attorney General shall file with the

District Court, Water Division Number 7, of the State of Colorado, such instruments

as may be necessary to request the court to amend the final consent decree to provide for the amendments made to this Act under the Colorado Ute Settlement Act

Amendments of 2000. The amended final consent decree shall specify terms and

conditions to provide for an extension of the current January 1, 2005, deadline for

the tribes to commence litigation of their reserved rights claims on the Animas and

La Plata Rivers.

‘‘SEC. 19. STATUTORY CONSTRUCTION; TREATMENT OF CERTAIN FUNDS.

‘‘(a) IN GENERAL.—Nothing in the amendments made by the Colorado Ute Settlement Act Amendments of 2000 shall be construed to affect the applicability of any

provision of this Act other than those provisions amended.

‘‘(b) TREATMENT OF UNCOMMITTED PORTION OF COST-SHARING OBLIGATION.—The

uncommitted portion of the cost-sharing obligation of the State of Colorado referred

to in section 6(a)(3) shall be made available, upon the request of the State of Colorado, to the State of Colorado after the date on which payment is made of the

amount specified in that section.’’.

PURPOSE OF THE BILL

The purpose of H.R. 3112 is to amend the Colorado Ute Indian

Water Rights Settlement Act to provide for a final settlement of the

claims of the Colorado Ute Indian Tribes, and for other purposes.

BACKGROUND AND NEED FOR LEGISLATION

The Animas La Plata (ALP) Project was originally authorized by

the Colorado River Basin Project Act of 1968 to be located in La

Plata County in southwestern Colorado and in San Juan County in

northwestern New Mexico. The ALP Project was designed to provide irrigation, municipal and industrial water supplies to the Colorado Ute Tribes and other project beneficiaries. In 1976, the United

States filed suit to quantify tribal water rights within the rivers

and streams in southwestern Colorado for the Southern Ute and

Ute Mountain Ute Indian Tribes of Colorado (collectively the ‘‘Ute

tribes’’). The priority date for the tribal water corresponded to the

date the reservation was established in 1868.

The 1986 settlement made use of the water supply to be developed by the ALP and Delores Projects to satisfy the Ute tribes’ reserved water rights claims. In 1988, Congress passed a settlement

act for the Ute tribes, the Colorado Ute Water Rights Settlement

Act of 1988 (Public Law 100–585; 102 Stat. 2973).
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The Bureau of Reclamation’s 1996 Final Environmental Statement documents for the ALP Project generated significant controversy among project participants and led to the ‘‘RomerSchoettler process’’. That review, headed by then-Colorado Governor Roy Romer and Lt. Governor Gail Schoettler, convened both

supporters and opponents of the ALP Project in an attempt to address unresolved issues and gain consensus on an alternative to

the original project, which would satisfy the Indian water rights

confirmed by the 1988 settlement act.

As a result of the Romer-Schoettler process, new structural and

non-structural alternatives evolved in August 1997. The structural

alternative, called the Animas-La Plata Reconciliation Plan, included a scaled-down version of the proposed reservoir at Ridges

Basin that would store water from the Animas River. The nonstructural alternative, referred to as the Animas River Citizen’s Coalition Conceptual Alternative, focused on providing tribes funds to

purchase water from existing projects, and/or the acquisition of existing direct flow water rights, as well as the use and/or modification of existing federal facilities.

Two years ago, the Water and Power Subcommittee of the Committee on Resources held a hearing to address issues raised by the

Romer-Schoettler process regarding what direction to take with the

ALP Project, and to hear testimony from project proponents, opponents, and the Administration. During the hearing, then Counselor

to the Secretary of the Interior David Hayes indicated the desire

of the Administration to address additional issues. On August 11,

1998, the Secretary of the Interior presented an Administration

proposal to implement the 1988 Settlement Act. H.R. 3112 is an attempt by project beneficiaries to implement these negotiations and

come to a final resolution of the Ute tribes’ water rights.

Under the terms of the 1986 Settlement Agreement, the federal

government must construct facilities to deliver water to the Ute

tribes by 2000. If that does not occur, the Ute tribes may return

to court by January 1, 2005, to assert their reserved water rights

claims.

In contrast with the 1986 Settlement, under H.R. 3112 the Ute

tribes agree to forgo asserting their reserved water rights claims if

the substitute benefits provided under the bill are adopted (i.e. $40

million trust fund and making the Indian municipal and industrial

portion of the project nonreimbursable).

COMMITTEE ACTION

H.R. 3112 was introduced on October 20, 1999, by Congressman

Scott McInnis (R–CO). The bill was referred to the Committee on

Resources, and subsequently to the Subcommittee on Water and

Power. On May 11, 2000, the Subcommittee held a hearing on the

bill. On July 19, 2000, the Resources Committee met to consider

the bill. The Subcommittee on Water and Power was discharged

from further consideration of the bill by unanimous consent. Congressman John T. Doolittle (R–CA) offered an amendment in the

nature of a substitute which clarified the nature of the substitute

benefits to the Indian tribes, clarified that environmental compliance will be completed for all features of the project, clarified the

non-Indian municipal and industrial portion of the project would be

prepaid by the sponsors. Congressman Peter DeFazio (D–OR) of-
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fered an amendment to the Doolittle amendment regarding the deauthorization of the remainder of the project. The amendment

failed by voice vote. Congressman Tom Udall (D–NM) offered an

amendment regarding judicial review. The amendment failed on a

voice vote. The Doolittle amendment was then adopted by voice

vote. The bill, as amended, was then ordered favorably reported to

the House of Representatives by voice vote.

SECTION-BY-SECTION ANALYSIS

Section 1. Short title; findings; definitions

This section cites the short title as ‘‘Colorado Ute Settlement Act

Amendments of 2000’’. The section also states that the substitute

benefits provided to the Ute tribes under this bill result in a settlement that provides the Ute tribes with benefits that are equivalent

to those that the tribes would have received under the Colorado

Ute Indian Water Rights Settlement Act of 1988 (Public Law 100–

585).

Section 2. Amendments to section 6 of the Colorado Ute Indian

Water Rights Settlement Act of 1988

This section amends the Colorado Ute Indian Water Rights Settlement Act to authorize the Secretary of the Interior, acting

through the Bureau of Reclamation, to complete the construction

of, and operate and maintain, a reservoir, a pumping plant, a reservoir inlet conduit, and appurtenant facilities to divert and store

an average annual depletion of 57,000 acre-feet of water from the

Animas River to provide municipal and industrial water supply,

and deliver through the use of such components specified municipal

and industrial water allocations to the San Juan Water Commission, Animas LaPlata Conservancy District, State of Colorado, La

Plata Conservancy District of New Mexico, Southern Ute and Ute

Mountain Ute tribes, and the Navaho Nation.

The section provides that construction costs required to deliver

each Tribe’s water allocation shall be nonreimbursable.

The Secretary under this section, and in the bill, may not seek

repayment of costs if those costs have been specifically determined

by Congress to be non-reimbursable and non-recoverable.

Section 3. Miscellaneous

This section adds several new sections to the Colorado Ute Indian Water Rights Settlement Act. The new section 15 requires the

Secretary, upon request of the State Engineer of New Mexico, to

assign to the New Mexico project beneficiaries or the New Mexico

Interstate Stream Commission any portion of the Secretary of the

Interior’s interests under a specified permit to fulfill the New Mexico purposes of the project, provided that the assignment shall not

affect the application of the Endangered Species Act of 1973 to the

use of water.

The section also authorizes the Secretary to construct a water

line to augment the existing system that conveys municipal water

supplies to the Navajo Indian Reservation at Shiprock, New Mexico. The section makes construction costs for the water line nonreimbursable.
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New section 16 authorizes appropriations to the Southern Ute

and Ute Mountain Ute Tribal Resource Funds, and provides for

disbursement of Fund monies in accordance with approved natural

resource acquisition and enhancement plans.

New section 17 establishes the Colorado Ute Settlement Fund in

the Treasury and authorizes appropriations to the Fund to complete the construction of project facilities.

New section 18 requires the construction of facilities, allocation

of water supply to the Indian tribes, and provision of funds under

this bill to constitute final settlement of tribal claims to water

rights on the Animas and La Plata Rivers. New section 19 provides

a rule of statutory construction and specifies the treatment of certain funds.

COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of rule XIII

of the Rules of the House of Representatives, the Committee on Resources’ oversight findings and recommendations are reflected in

the body of this report.

CONSTITUTIONAL AUTHORITY STATEMENT

Article I, section 8 of the Constitution of the United States

grants Congress the authority to enact this bill.

COMPLIANCE WITH HOUSE RULE XIII

1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the Rules of

the House of Representatives requires an estimate and a comparison by the Committee of the costs which would be incurred in carrying out this bill. The Committee believes that enactment of this

bill would have little impact on the federal budget.

2. Congressional Budget Act. As required by clause 3(c)(2) of rule

XIII of the Rules of the House of Representatives and section

308(a) of the Congressional Budget Act of 1974, this bill does not

contain any new budget authority, credit authority, or an increase

or decrease in tax expenditures.

3. Government Reform Oversight Findings. Under clause 3(c)(4)

of rule XIII of the Rules of the House of Representatives, the Committee has received no report of oversight findings and recommendations from the Committee on Government Reform on this

bill.

4. Congressional Budget Office Cost Estimate. Under clause

3(c)(3) of rule XIII of the Rules of the House of Representatives and

section 403 of the Congressional Budget Act of 1974, the Committee has requested but not received a cost estimate for this bill

from the Director of the Congressional Budget Office.

COMPLIANCE WITH PUBLIC LAW 104–4

This bill contains no unfunded mandates.

PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

This bill is not intended to preempt any State, local or tribal law.
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CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the

House of Representatives, changes in existing law made by the bill,

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic,

existing law in which no change is proposed is shown in roman):

COLORADO UTE INDIAN WATER RIGHTS SETTLEMENT

ACT OF 1988

* * * * * * *

SEC. 6. REPAYMENT OF PROJECT COSTS.

ø(a) MUNICIPAL AND INDUSTRIAL WATER.—(1) The Secretary shall

defer, without interest, the repayment of the construction costs allocable to each Tribe’s municipal and industrial water allocation

from the Animas-La Plata and Dolores Projects until water is first

used either by the Tribe or pursuant to a water use contract with

the Tribe. Until such water is first used either by a Tribe or pursuant to a water use contract with the Tribe, the Secretary shall bear

the annual operation, maintenance, and replacement costs allocable

to the Tribe’s municipal and industrial water allocation from the

Animas-La Plata and Dolores Projects, which costs shall not be reimbursable by the Tribe.

ø(2) As an increment of such water is first used by a Tribe or

is first used pursuant to the terms of a water use contract with the

Tribe, repayment of that increment’s pro rata share of such allocable construction costs shall commence by the Tribe and the Tribe

shall commence bearing that increment’s pro rata share of the allocable annual operation, maintenance, and replacement costs.¿

(a) RESERVOIR; MUNICIPAL AND INDUSTRIAL WATER.— (1) FACILITIES.— (A) IN GENERAL.—After the date of enactment of this subsection, but prior to January 1, 2005, the Secretary, in

order to settle the outstanding claims of the Tribes on the

Animas and La Plata Rivers, acting through the Bureau of

Reclamation, is specifically authorized to—

(i) complete construction of, and operate and maintain, a reservoir, a pumping plant, a reservoir inlet

conduit, and appurtenant facilities with sufficient capacity to divert and store water from the Animas River

to provide for an average annual depletion of 57,100

acre-feet of water to be used for a municipal and industrial water supply, which facilities shall—

(I) be designed and operated in accordance with

the hydrologic regime necessary for the recovery of

the endangered fish of the San Juan River as determined by the San Juan River Recovery Implementation Program;

(II) include an inactive pool of an appropriate

size to be determined by the Secretary following the

completion of required environmental compliance

activities; and

(III) include those recreation facilities determined to be appropriate by agreement between the

State of Colorado and the Secretary that shall ad-
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dress the payment of any of the costs of such facilities by the State of Colorado in addition to the

costs described in paragraph (3); and

(ii) deliver, through the use of the project components

referred to in clause (i), municipal and industrial

water allocations—

(I) with an average annual depletion not to exceed 16,525 acre-feet of water, to the Southern Ute

Indian Tribe for its present and future needs;

(II) with an average annual depletion not to exceed 16,525 acre-feet of water, to the Ute Mountain

Ute Indian Tribe for its present and future needs;

(III) with an average annual depletion not to exceed 2,340 acre-feet of water, to the Navajo Nation

for its present and future needs;

(IV) with an average annual depletion not to exceed 10,400 acre-feet of water, to the San Juan

Water Commission for its present and future

needs;

(V) with an average annual depletion of an

amount not to exceed 2,600 acre-feet of water, to

the Animas-La Plata Conservancy District for its

present and future needs;

(VI) with an average annual depletion of an

amount not to exceed 5,230 acre-feet of water, to

the State of Colorado for its present and future

needs; and

(VII) with an average annual depletion of an

amount not to exceed 780 acre-feet of water, to the

La Plata Conservancy District of New Mexico for

its present and future needs.

(B) APPLICABILITY OF OTHER FEDERAL LAW.—The responsibilities of the Secretary described in subparagraph (A) are

subject to the requirements of Federal laws related to the

protection of the environment and otherwise applicable to

the construction of the proposed facilities, including the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et

seq.), the Clean Water Act (42 U.S.C. 7401 et seq.), and the

Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

Nothing in this Act shall be construed to predetermine or

otherwise affect the outcome of any analysis conducted by

the Secretary or any other Federal official under applicable

laws.

(C) LIMITATION.—

(i) IN GENERAL.—If constructed, the facilities described in subparagraph (A) constitute the Animas-La

Plata Project. Construction of any other project features

authorized by the Colorado River Basin Project Act

(Public Law 90–537; 82 Stat. 885) shall not be commenced without further authorization from Congress.

(ii) CONTINGENCY IN APPLICATION.—If the facilities

described in subparagraph (A) are not constructed and

operated, clause (i) shall not take effect.

(2) TRIBAL CONSTRUCTION COSTS.—Construction costs allocable to the facilities that are required to deliver the municipal
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and industrial water allocations described in subclauses (I), (II)

and (III) of paragraph (1)(A)(ii) shall be nonreimbursable to the

United States.

(3) NONTRIBAL WATER CAPITAL OBLIGATIONS.— (A) IN GENERAL.—Under the provisions of section 9 of the

Act of August 4, 1939 (43 U.S.C. 485h), the nontribal municipal and industrial water capital repayment obligations

for the facilities described in paragraph (1)(A)(i) may be

initially satisfied upon the payment in full of the nontribal

water capital obligations prior to the initiation of construction. The amount of the obligations described in the preceding sentence shall be determined by agreement between

the Secretary of the Interior and the entity responsible for

such repayment as to the appropriate reimbursable share of

the construction costs allocated to that entity’s municipal

water supply. Such agreement shall take into account the

fact that the construction of facilities to provide irrigation

water supplies from the Animas-La Plata Project is not authorized under paragraph (1)(A)(i) and no costs associated

with the design or development of such facilities, including

costs associated with environmental compliance, shall be

allocable to the municipal and industrial users of the facilities authorized under such paragraph.

(B) NONTRIBAL REPAYMENT OBLIGATION SUBJECT TO

FINAL COST ALLOCATION.—The nontribal repayment obligation for the water supply identified in paragraph (1)(A)(ii)

shall be subject to a final cost allocation by the Secretary

upon project completion. In the event that the final cost allocation indicates that additional repayment is warranted

based on the applicable entity’s share of project water supply and determination of overall cost, that entity may elect

to enter into a new agreement to make the additional payment necessary to secure the original water supply identified in paragraph (1)(A)(ii). If the repayment entity elects

not to enter into a new agreement, the portion of the water

supply relinquished by such election should be available to

the Secretary for allocation to other project purposes. Additional repayment shall only be warranted for reasonable

and unforeseen costs associated with project construction as

determined by the Secretary in consultation with the relevant repayment entities.

(C) REPORT.—Not later than April 1, 2001, the Secretary

shall report to Congress on the status of the cost-share

agreements contemplated in subparagraph (A). In the event

that no agreement is reached with either the Animas-La

Plata Conservancy District or the State of Colorado for the

water allocations set forth in subclauses (V) and (VI) of

paragraph (1)(A)(ii), those allocations shall be reallocated

equally to the Colorado Ute Tribes.

(4) TRIBAL WATER ALLOCATIONS.—

(A) IN GENERAL.—With respect to municipal and industrial water allocated to a Tribe from the Animas-La Plata

Project or the Dolores Project, until that water is first used

by a Tribe or used pursuant to a water use contract with

the Tribe, the Secretary shall pay the annual operation,
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maintenance, and replacement costs allocable to that municipal and industrial water allocation of the Tribe.

(B) TREATMENT OF COSTS.—A Tribe shall not be required

to reimburse the Secretary for the payment of any cost referred to in subparagraph (A).

(5) REPAYMENT OF PRO RATA SHARE.—Upon a Tribe’s first use

of an increment of a municipal and industrial water allocation

described in paragraph (4), or the Tribe’s first use of such water

pursuant to the terms of a water use contract—

(A) repayment of that increment’s pro rata share of those

allocable construction costs for the Dolores Project shall be

made by the Tribe; and

(B) the Tribe shall bear a pro rata share of the allocable

annual operation, maintenance, and replacement costs of

the increment as referred to in paragraph (4).

* * * * * * *

SEC. 15. NEW MEXICO AND NAVAJO NATION WATER MATTERS.

(a) ASSIGNMENT OF WATER PERMIT.—Upon the request of the

State Engineer of the State of New Mexico, the Secretary shall, in

a manner consistent with applicable law, assign, without consideration, to the New Mexico Animas-La Plata Project beneficiaries or

to the New Mexico Interstate Stream Commission in accordance

with the request such portion of the Department of the Interior’s interest in New Mexico Engineer Permit Number 2883, dated May 1,

1956, in order to fulfill the New Mexico purposes of the Animas-La

Plata Project, so long as the permit assignment does not affect the

application of the Endangered Species Act of 1973 (16 U.S.C. 1531

et seq.) to the use of the water involved.

(b) NAVAJO NATION MUNICIPAL PIPELINE.—The Secretary may

construct a water line to augment the existing system that conveys

the municipal water supplies, in an amount not less than 4,680

acre-feet per year, of the Navajo Nation to the Navajo Indian Reservation at Shiprock, New Mexico. The Secretary shall comply with

all applicable environmental laws with respect to such water line.

Construction costs allocated to the Navajo Nation for such water

line shall be nonreimbursable to the United States.

(c) PROTECTION OF NAVAJO WATER CLAIMS.—Nothing in this Act

shall be construed to quantify or otherwise adversely affect the

water rights and the claims of entitlement to water of the Navajo

Nation.

SEC. 16. TRIBAL RESOURCE FUNDS.

(a) ESTABLISHMENT.—

(1) AUTHORIZATION OF APPROPRIATIONS.—There is authorized

to be appropriated to carry out this section, $8,000,000 per year

for 5 fiscal years beginning in fiscal year 2002. Not later than

60 days after amounts are appropriated and available to the

Secretary for a fiscal year under this paragraph, the Secretary

shall make a payment to each of the Tribal Resource Funds established under paragraph (2). Each such payment shall be

equal to 50 percent of the amount appropriated for the fiscal

year involved.

(2) FUNDS.—The Secretary shall establish a—

(A) Southern Ute Tribal Resource Fund; and

(B) Ute Mountain Ute Tribal Resource Fund.
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A separate account shall be maintained for each such Fund.

(b) TRIBAL DEVELOPMENT.— (1) INVESTMENT.—The Secretary shall, in the absence of an

approved tribal investment plan provided for under paragraph

(2), invest the amount in each Tribal Resource Fund in accordance with the Act entitled, ‘‘An Act to authorize the deposit and

investment of Indian funds’’ approved June 24, 1938 (25 U.S.C.

162a). The Secretary, subject to subsection (e), shall disburse, at

the request of a Tribe, the principal and income in its Resource

Fund, or any part thereof, in accordance with a resource acquisition and enhancement plan approved under paragraph (3).

(2) INVESTMENT PLAN.— (A) IN GENERAL.—In lieu of the investment provided for

in paragraph (1), a Tribe may submit a tribal investment

plan applicable to all or part of the Tribe’s Tribal Resource

Fund.

(B) APPROVAL.—Not later than 60 days after the date on

which an investment plan is submitted under subparagraph (A), the Secretary shall approve such investment

plan if the Secretary finds that the plan is reasonable and

sound. If the Secretary does not approve such investment

plan, the Secretary shall set forth in writing and with particularity the reasons for such disapproval. If such investment plan is approved by the Secretary subject to subsection (e), the Tribal Resource Fund involved shall be disbursed to the Tribe to be invested by the Tribe in accordance with the approved investment plan.

(C) COMPLIANCE.—The Secretary may take such steps as

the Secretary determines to be necessary to monitor the

compliance of a Tribe with an investment plan approved

under subparagraph (B). The United States shall not be responsible for the review, approval, or audit of any individual investment under the plan. The United States shall

not be directly or indirectly liable with respect to any such

investment, including any act or omission of the Tribe in

managing or investing such funds.

(D) ECONOMIC DEVELOPMENT PLAN.—The principal and

income derived from tribal investments under an investment plan approved under subparagraph (B) shall be subject to the provisions of this section and shall be expended

only in accordance with an economic development plan approved under paragraph (3).

(3) ECONOMIC DEVELOPMENT PLAN.—

(A) IN GENERAL.—Each Tribe shall submit to the Secretary a resource acquisition and enhancement plan for all

or any portion of its Tribal Resource Fund.

(B) APPROVAL.—Not later than 60 days after the date on

which a plan is submitted under subparagraph (A), the

Secretary shall approve such investment plan if the Secretary finds that the plan is reasonably related to the protection, acquisition, enhancement, or development of natural resources for the benefit of the Tribe and its members.

If the Secretary does not approve such plan, the Secretary

shall, at the time of such determination, set forth in writing

and with particularity the reasons for such disapproval.
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(C) MODIFICATION.—Subject to the approval of the Secretary, each Tribe may modify a plan approved under subparagraph (B).

(D) LIABILITY.—The United States shall not be directly or

indirectly liable for any claim or cause of action arising

from the approval of a plan under this paragraph, or from

the use and expenditure by the Tribe of the principal or interest of the Funds.

(c) LIMITATION ON PER CAPITA DISTRIBUTIONS.—No part of the

principal contained in the Tribal Resource Fund, or of the income

accruing to such funds, or the revenue from any water use contract,

shall be distributed to any member of either Tribe on a per capita

basis.

(d) LIMITATION ON SETTING ASIDE FINAL CONSENT DECREE.—

Neither the Tribes nor the United States shall have the right to set

aside the final consent decree solely because the requirements of subsection (b) are not complied with or implemented.

(e) LIMITATION ON DISBURSEMENT OF TRIBAL RESOURCE

FUNDS.—Any moneys appropriated under this section shall be

placed into the Southern Ute Tribal Resource Fund and the Ute

Mountain Ute Tribal Resource Fund in the Treasury of the United

States but shall not be available for disbursement under this section

until the final settlement of the tribal claims as provided in section

18. The Secretary of the Interior may, in the Secretary’s sole discretion, authorize the disbursement of funds prior to the final settlement in the event that the Secretary determines that substantial

portions of the settlement have been completed. In the event that the

funds are not disbursed under the terms of this section by December

31, 2012, such funds shall be deposited in the general fund of the

Treasury.

SEC. 17. COLORADO UTE SETTLEMENT FUND.

(a) ESTABLISHMENT OF FUND.—There is hereby established within

the Treasury of the United States a fund to be known as the ‘‘Colorado Ute Settlement Fund’’.

(b) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to

be appropriated to the Colorado Ute Settlement Fund such funds as

are necessary to complete the construction of the facilities described

in section 6(a)(1)(A) within 7 years of the date of enactment of this

section. Such funds are authorized to be appropriated for each of

the first 5 fiscal years beginning with the first full fiscal year following the date of enactment of this section.

SEC. 18. FINAL SETTLEMENT.

(a) IN GENERAL.—The construction of the facilities described in

section 6(a)(1)(A), the allocation of the water supply from those facilities to the Tribes as described in that section, the provision of

funds to the Tribes in accordance with section 16, and the issuance

of an amended final consent decree as contemplated in subsection

(c) shall constitute final settlement of the tribal claims to water

rights on the Animas and La Plata Rivers in the State of Colorado.

(b) STATUTORY CONSTRUCTION.—Nothing in this section shall be

construed to affect the right of the Tribes to water rights on the

streams and rivers described in the Agreement, other than the

Animas and La Plata Rivers, to receive the amounts of water dedi-
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cated to tribal use under the Agreement, or to acquire water rights

under the laws of the State of Colorado.

(c) ACTION BY THE ATTORNEY GENERAL.—The Attorney General

shall file with the District Court, Water Division Number 7, of the

State of Colorado, such instruments as may be necessary to request

the court to amend the final consent decree to provide for the

amendments made to this Act under the Colorado Ute Settlement

Act Amendments of 2000. The amended final consent decree shall

specify terms and conditions to provide for an extension of the current January 1, 2005, deadline for the tribes to commence litigation

of their reserved rights claims on the Animas and La Plata Rivers.

SEC. 19. STATUTORY CONSTRUCTION; TREATMENT OF CERTAIN

FUNDS.

(a) IN GENERAL.—Nothing in the amendments made by the Colorado Ute Settlement Act Amendments of 2000 shall be construed to

affect the applicability of any provision of this Act other than those

provisions amended.

(b) TREATMENT OF UNCOMMITTED PORTION OF COST-SHARING OBLIGATION.—The uncommitted portion of the cost-sharing obligation

of the State of Colorado referred to in section 6(a)(3) shall be made

available, upon the request of the State of Colorado, to the State of

Colorado after the date on which payment is made of the amount

specified in that section.

Æ