89–006 

111TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 111–395 

TAOS PUEBLO INDIAN WATER RIGHTS SETTLEMENT ACT 

JANUARY 12, 2010.—Committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. RAHALL, from the Committee on Natural Resources, 

submitted the following 

R E P O R T 

together with 

ADDITIONAL VIEWS 

[To accompany H.R. 3254] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Natural Resources, to whom was referred the 

bill (H.R. 3254) to approve the Taos Pueblo Indian Water Rights 

Settlement Agreement, 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; TABLE OF CONTENTS. 

(a) SHORT TITLE.—This Act may be cited as the ‘‘Taos Pueblo Indian Water Rights 

Settlement Act’’. 

(b) TABLE OF CONTENTS.—The table of contents of this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Purpose. 

Sec. 3. Definitions. 

Sec. 4. Pueblo rights. 

Sec. 5. Pueblo water infrastructure and watershed enhancement. 

Sec. 6. Taos Pueblo Water Development Fund. 

Sec. 7. Marketing. 

Sec. 8. Mutual-Benefit Projects. 

Sec. 9. San Juan-Chama Project contracts. 

Sec. 10. Authorizations, ratifications, confirmations, and conditions precedent. 

Sec. 11. Waivers and releases. 

Sec. 12. Interpretation and enforcement. 

Sec. 13. Disclaimer. 


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SEC. 2. PURPOSE. 

The purposes of this Act are— 

(1) to approve, ratify, and confirm the Taos Pueblo Indian Water Rights Settlement Agreement; 

(2) to authorize and direct the Secretary to execute the Settlement Agreement 

and to perform all obligations of the Secretary under the Settlement Agreement 

and this Act; and 

(3) to authorize all actions and appropriations necessary for the United States 

to meet its obligations under the Settlement Agreement and this Act. 

SEC. 3. DEFINITIONS. 

In this Act: 

(1) ELIGIBLE NON-PUEBLO ENTITIES.—The term ‘‘Eligible Non-Pueblo Entities’’ 

means the Town of Taos, El Prado Water and Sanitation District (‘‘EPWSD’’), 

and the New Mexico Department of Finance and Administration Local Government Division on behalf of the Acequia Madre del Rio Lucero y del Arroyo Seco, 

the Acequia Madre del Prado, the Acequia del Monte, the Acequia Madre del 

Rio Chiquito, the Upper Ranchitos Mutual Domestic Water Consumers Association, the Upper Arroyo Hondo Mutual Domestic Water Consumers Association, 

and the Llano Quemado Mutual Domestic Water Consumers Association. 

(2) ENFORCEMENT DATE.—The term ‘‘Enforcement Date’’ means the date upon 

which the Secretary publishes the notice required by section 10(f)(1). 

(3) MUTUAL-BENEFIT PROJECTS.—The term ‘‘Mutual-Benefit Projects’’ means 

the projects described and identified in articles 6 and 10.1 of the Settlement 

Agreement. 

(4) PARTIAL FINAL DECREE.—The term ‘‘Partial Final Decree’’ means the Decree entered in New Mexico v. Abeyta and New Mexico v. Arellano, Civil Nos. 

7896–BB (U.S.6 D.N.M.) and 7939–BB (U.S. D.N.M) (consolidated), for the resolution of the Pueblo’s water right claims and which is substantially in the form 

agreed to by the Parties and attached to the Settlement Agreement as Attachment 5. 

(5) PARTIES.—The term ‘‘Parties’’ means the Parties to the Settlement Agreement, as identified in article 1 of the Settlement Agreement. 

(6) PUEBLO.—The term ‘‘Pueblo’’ means the Taos Pueblo, a sovereign Indian 

tribe duly recognized by the United States of America. 

(7) PUEBLO LANDS.—The term ‘‘Pueblo lands’’ means those lands located within the Taos Valley to which the Pueblo, or the United States in its capacity as 

trustee for the Pueblo, holds title subject to Federal law limitations on alienation. Such lands include Tracts A, B, and C, the Pueblo’s land grant, the Blue 

Lake Wilderness Area, and the Tenorio and Karavas Tracts and are generally 

depicted in Attachment 2 to the Settlement Agreement. 

(8) SAN JUAN-CHAMA PROJECT.—The term ‘‘San Juan-Chama Project’’ means 

the Project authorized by section 8 of the Act of June 13, 1962 (76 Stat. 96, 97), 

and the Act of April 11, 1956 (70 Stat. 105). 

(9) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of the Interior. 

(10) SETTLEMENT AGREEMENT.—The term ‘‘Settlement Agreement’’ means the 

contract dated March 31, 2006, between and among— 

(A) the United States, acting solely in its capacity as trustee for Taos 

Pueblo; 

(B) the Taos Pueblo, on its own behalf; 

(C) the State of New Mexico; 

(D) the Taos Valley Acequia Association and its 55 member ditches 

(‘‘TVAA’’); 

(E) the Town of Taos; 

(F) EPWSD; and 

(G) the 12 Taos area Mutual Domestic Water Consumers Associations 

(‘‘MDWCAs’’), as amended to conform with this Act. 

(11) STATE ENGINEER.—The term ‘‘State Engineer’’ means the New Mexico 

State Engineer. 

(12) TAOS VALLEY.—The term ‘‘Taos Valley’’ means the geographic area depicted in Attachment 4 of the Settlement Agreement. 

SEC. 4. PUEBLO RIGHTS. 

(a) IN GENERAL.—Those rights to which the Pueblo is entitled under the Partial 

Final Decree shall be held in trust by the United States on behalf of the Pueblo 

and shall not be subject to forfeiture, abandonment, or permanent alienation. 

(b) SUBSEQUENT ACT OF CONGRESS.—The Pueblo shall not be denied all or any 

part of its rights held in trust absent its consent unless such rights are explicitly 

abrogated by an Act of Congress hereafter enacted. 


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SEC. 5. PUEBLO WATER INFRASTRUCTURE AND WATERSHED ENHANCEMENT. 

(a) IN GENERAL.—The Secretary, acting through the Commissioner of Reclamation, shall provide grants and technical assistance to the Pueblo on a nonreimbursable basis to— 

(1) plan, permit, design, engineer, construct, reconstruct, replace, or rehabilitate water production, treatment, and delivery infrastructure; 

(2) restore, preserve, and protect the environment associated with the Buffalo 

Pasture area; and 

(3) protect and enhance watershed conditions. 

(b) AVAILABILITY OF GRANTS.—Upon the Enforcement Date, all amounts appropriated pursuant to section 10(c)(1) or made available from other authorized sources, 

shall be available in grants to the Pueblo after the requirements of subsection (c) 

have been met. 

(c) PLAN.—The Secretary shall provide financial assistance pursuant to subsection 

(a) upon the Pueblo’s submittal of a plan that identifies the projects to be implemented consistent with the purposes of this section and describes how such projects 

are consistent with the Settlement Agreement. 

(d) EARLY FUNDS.—Notwithstanding subsection (b), $10,000,000 of the monies authorized to be appropriated pursuant to section 10(c)(1)— 

(1) shall be made available in grants to the Pueblo by the Secretary upon appropriation or availability of the funds from other authorized sources; and 

(2) shall be distributed by the Secretary to the Pueblo on receipt by the Secretary from the Pueblo of a written notice, a Tribal Council resolution that describes the purposes under subsection (a) for which the monies will be used, and 

a plan under subsection (c) for this portion of the funding. 

SEC. 6. TAOS PUEBLO WATER DEVELOPMENT FUND. 

(a) ESTABLISHMENT.—There is established in the Treasury of the United States 

a fund to be known as the ‘‘Taos Pueblo Water Development Fund’’ (hereinafter, 

‘‘Fund’’) to be used to pay or reimburse costs incurred by the Pueblo for— 

(1) acquiring water rights; 

(2) planning, permitting, designing, engineering, constructing, reconstructing, 

replacing, rehabilitating, operating, or repairing water production, treatment or 

delivery infrastructure, on-farm improvements, or wastewater infrastructure; 

(3) restoring, preserving and protecting the Buffalo Pasture, including planning, permitting, designing, engineering, constructing, operating, managing and 

replacing the Buffalo Pasture Recharge Project; 

(4) administering the Pueblo’s water rights acquisition program and water 

management and administration system; and 

(5) for watershed protection and enhancement, support of agriculture, waterrelated Pueblo community welfare and economic development, and costs related 

to the negotiation, authorization, and implementation of the Settlement Agreement. 

(b) MANAGEMENT OF THE FUND.—The Secretary shall manage the Fund, invest 

amounts in the Fund, and make monies available from the Fund for distribution 

to the Pueblo consistent with the American Indian Trust Fund Management Reform 

Act of 1994 (25 U.S.C. 4001, et seq.) (hereinafter, ‘‘Trust Fund Reform Act’’), this 

Act, and the Settlement Agreement. 

(c) INVESTMENT OF THE FUND.—Upon the Enforcement Date, the Secretary shall 

invest amounts in the Fund in accordance with— 

(1) the Act of April 1, 1880 (21 Stat. 70, ch. 41, 25 U.S.C. 161); 

(2) the first section of the Act of June 24, 1938 (52 Stat. 1037, ch. 648, 25 

U.S.C. 162a); and 

(3) the American Indian Trust Fund Management Reform Act of 1994 (25 

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

(d) AVAILABILITY OF AMOUNTS FROM THE FUND.—Upon the Enforcement Date, all 

monies deposited in the Fund pursuant to section 10(c)(2) or made available from 

other authorized sources shall be available to the Pueblo for expenditure or withdrawal after the requirements of subsection (e) have been met. 

(e) EXPENDITURES AND WITHDRAWAL.— 

(1) TRIBAL MANAGEMENT PLAN.— 

(A) IN GENERAL.—The Pueblo may withdraw all or part of the Fund on 

approval by the Secretary of a tribal management plan as described in the 

Trust Fund Reform Act. 

(B) REQUIREMENTS.—In addition to the requirements under the Trust 

Fund Reform Act, the tribal management plan shall require that the Pueblo 

spend any funds in accordance with the purposes described in subsection 

(a). 


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(2) ENFORCEMENT.—The Secretary may take judicial or administrative action 

to enforce the requirement that monies withdrawn from the Fund are used for 

the purposes specified in subsection (a). 

(3) LIABILITY.—If the Pueblo exercises the right to withdraw monies from the 

Fund, neither the Secretary nor the Secretary of the Treasury shall retain any 

liability for the expenditure or investment of the monies withdrawn. 

(4) EXPENDITURE PLAN.— 

(A) IN GENERAL.—The Pueblo shall submit to the Secretary for approval 

an expenditure plan for any portions of the funds made available under this 

Act that the Pueblo does not withdraw under paragraph (1)(A). 

(B) DESCRIPTION.—The expenditure plan shall describe the manner in 

which, and the purposes for which, amounts remaining in the Fund will be 

used. 

(C) APPROVAL.—On receipt of an expenditure plan under subparagraph 

(A), the Secretary shall approve the plan if the Secretary determines that 

the plan is reasonable and consistent with this Act. 

(5) ANNUAL REPORT.—The Pueblo shall submit to the Secretary an annual report that describes all expenditures from the Fund during the year covered by 

the report. 

(f) FUNDS AVAILABLE UPON APPROPRIATION.—Notwithstanding subsection (d), 

$15,000,000 of the monies authorized to be appropriated pursuant to section 

10(c)(2)— 

(1) shall be available upon appropriation or made available from other authorized sources for the Pueblo’s acquisition of water rights pursuant to Article 

5.1.1.2.3 of the Settlement Agreement, the Buffalo Pasture Recharge Project, 

implementation of the Pueblo’s water rights acquisition program and water 

management and administration system, the design, planning, and permitting 

of water or wastewater infrastructure eligible for funding under sections 5 or 

6, or costs related to the negotiation, authorization, and implementation of the 

Settlement Agreement; and 

(2) shall be distributed by the Secretary to the Pueblo on receipt by the Secretary from the Pueblo of a written notice and a Tribal Council resolution that 

describes the purposes under paragraph (1) for which the monies will be used. 

(g) NO PER CAPITA DISTRIBUTIONS.—No part of the Fund shall be distributed on 

a per capita basis to members of the Pueblo. 

SEC. 7. MARKETING. 

(a) PUEBLO WATER RIGHTS.—Subject to the approval of the Secretary in accordance with subsection (e), the Pueblo may market water rights secured to it under 

the Settlement Agreement and Partial Final Decree, provided that such marketing 

is in accordance with this section. 

(b) PUEBLO CONTRACT RIGHTS TO SAN JUAN-CHAMA PROJECT WATER.—Subject to 

the approval of the Secretary in accordance with subsection (e), the Pueblo may subcontract water made available to the Pueblo under the contract authorized under 

section 9(b)(1)(A) to third parties to supply water for use within or without the Taos 

Valley, provided that the delivery obligations under such subcontract are not inconsistent with the Secretary’s existing San Juan-Chama Project obligations and such 

subcontract is in accordance with this section. 

(c) LIMITATION.— 

(1) IN GENERAL.—Diversion or use of water off Pueblo lands pursuant to Pueblo water rights or Pueblo contract rights to San Juan-Chama Project water shall 

be subject to and not inconsistent with the same requirements and conditions 

of State law, any applicable Federal law, and any applicable interstate compact 

as apply to the exercise of water rights or contract rights to San Juan-Chama 

Project water held by non-Federal, non-Indian entities, including all applicable 

State Engineer permitting and reporting requirements. 

(2) EFFECT ON WATER RIGHTS.—Such diversion or use off Pueblo lands under 

paragraph (1) shall not impair water rights or increase surface water depletions 

within the Taos Valley. 

(d) MAXIMUM TERM.— 

(1) IN GENERAL.—The maximum term of any water use lease or subcontract, 

including all renewals, shall not exceed 99 years in duration. 

(2) ALIENATION OF RIGHTS.—The Pueblo shall not permanently alienate any 

rights it has under the Settlement Agreement, the Partial Final Decree, and 

this Act. 

(e) APPROVAL OF SECRETARY.—The Secretary shall approve or disapprove any 

lease or subcontract submitted by the Pueblo for approval not later than— 

(1) 180 days after submission; or 


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(2) 60 days after compliance, if required, with section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)), or any other requirement of Federal law, whichever is later, provided that no Secretarial approval shall be required for any water use lease with a term of less than 7 

years. 

(f) NO FORFEITURE OR ABANDONMENT.—The nonuse by a lessee or subcontractor 

of the Pueblo of any right to which the Pueblo is entitled under the Partial Final 

Decree shall in no event result in a forfeiture, abandonment, relinquishment, or 

other loss of all or any part of those rights. 

(g) NO PREEMPTION.— (1) IN GENERAL.—The approval authority of the Secretary provided under subsection (e) shall not amend, construe, supersede, or preempt any State or Federal law, interstate compact, or international treaty that pertains to the Colorado River, the Rio Grande, or any of their tributaries, including the appropriation, use, development, storage, regulation, allocation, conservation, exportation, 

or quantity of those waters. 

(2) APPLICABLE LAW.—The provisions of section 2116 of the Revised Statutes 

(25 U.S.C. 177) shall not apply to any water made available under the Settlement Agreement. 

(h) NO PREJUDICE.—Nothing in this Act shall be construed to establish, address, 

prejudice, or prevent any party from litigating whether or to what extent any applicable State law, Federal law, or interstate compact does or does not permit, govern, 

or apply to the use of the Pueblo’s water outside of New Mexico. 

SEC. 8. MUTUAL-BENEFIT PROJECTS. 

(a) IN GENERAL.—Upon the Enforcement Date, the Secretary, acting through the 

Commissioner of Reclamation, shall provide financial assistance in the form of 

grants on a nonreimbursable basis to Eligible Non-Pueblo Entities to plan, permit, 

design, engineer, and construct the Mutual-Benefit Projects in accordance with the 

Settlement Agreement— 

(1) to minimize adverse impacts on the Pueblo’s water resources by moving 

future non-Indian ground water pumping away from the Pueblo’s Buffalo Pasture; and 

(2) to implement the resolution of a dispute over the allocation of certain surface water flows between the Pueblo and non-Indian irrigation water right owners in the community of Arroyo Seco Arriba. 

(b) COST-SHARING.— (1) FEDERAL SHARE.—The Federal share of the total cost of planning, designing, and constructing the Mutual-Benefit Projects authorized in subsection (a) 

shall be 75 percent and shall be nonreimbursable. 

(2) NON-FEDERAL SHARE.—The non-Federal share of the total cost of planning, 

designing, and constructing the Mutual-Benefit Projects shall be 25 percent and 

may be in the form of in-kind contributions, including the contribution of any 

valuable asset or service that the Secretary determines would substantially contribute to completing the Mutual-Benefit Projects. 

SEC. 9. SAN JUAN-CHAMA PROJECT CONTRACTS. 

(a) IN GENERAL.—Contracts issued under this section shall be in accordance with 

this Act and the Settlement Agreement. 

(b) CONTRACTS FOR SAN JUAN-CHAMA PROJECT WATER.— 

(1) IN GENERAL.—The Secretary shall enter into 3 repayment contracts by not 

later than 180 days after the date of enactment of this Act, for the delivery of 

San Juan-Chama Project water in the following amounts: 

(A) 2,215 acre-feet/annum to the Pueblo. 

(B) 366 acre-feet/annum to the Town of Taos. 

(C) 40 acre-feet/annum to EPWSD. 

(2) REQUIREMENTS.—Each such contract shall provide that if the conditions 

precedent set forth in section 10(f)(2) have not been fulfilled by December 31, 

2016, the contract shall expire on that date. 

(3) APPLICABLE LAW.—Public Law 87–483 (76 Stat. 97) applies to the contracts entered into under paragraph (1) and no preference shall be applied as 

a result of section 4(a) with regard to the delivery or distribution of San JuanChama Project water or the management or operation of the San Juan-Chama 

Project. 

(c) WAIVER.—With respect to the contract authorized and required by subsection 

(b)(1)(A) and notwithstanding the provisions of Public Law 87–483 (76 Stat. 96) or 

any other provision of law— 

(1) the Secretary shall waive the entirety of the Pueblo’s share of the construction costs, both principal and the interest, for the San Juan-Chama Project 

and pursuant to that waiver, the Pueblo’s share of all construction costs for the 


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San Juan-Chama Project, inclusive of both principal and interest shall be nonreimbursable; and 

(2) the Secretary’s waiver of the Pueblo’s share of the construction costs for 

the San Juan-Chama Project will not result in an increase in the pro rata 

shares of other San Juan-Chama Project water contractors, but such costs shall 

be absorbed by the United States Treasury or otherwise appropriated to the Department of the Interior. 

SEC. 10. AUTHORIZATIONS, RATIFICATIONS, CONFIRMATIONS, AND CONDITIONS PRECEDENT. 

(a) RATIFICATION.— 

(1) IN GENERAL.—Except to the extent that any provision of the Settlement 

Agreement conflicts with any provision of this Act, the Settlement Agreement 

is authorized, ratified, and confirmed. 

(2) AMENDMENTS.—To the extent amendments are executed to make the Settlement Agreement consistent with this Act, such amendments are also authorized, ratified, and confirmed. 

(b) EXECUTION OF SETTLEMENT AGREEMENT.—To the extent that the Settlement 

Agreement does not conflict with this Act, the Secretary shall execute the Settlement Agreement, including all exhibits to the Settlement Agreement requiring the 

signature of the Secretary and any amendments necessary to make the Settlement 

Agreement consistent with this Act, after the Pueblo has executed the Settlement 

Agreement and any such amendments. 

(c) AUTHORIZATION OF APPROPRIATIONS.— 

(1) TAOS PUEBLO INFRASTRUCTURE AND WATERSHED FUND.—There is authorized to be appropriated to the Secretary to provide grants pursuant to section 

5, $30,000,000, as adjusted under paragraph (4), for the period of fiscal years 

2010 through 2016. 

(2) TAOS PUEBLO WATER DEVELOPMENT FUND.—There is authorized to be appropriated to the Taos Pueblo Water Development Fund, established at section 

6(a), $58,000,000, as adjusted under paragraph (4), for the period of fiscal years 

2010 through 2016. 

(3) MUTUAL-BENEFIT PROJECTS FUNDING.—There is further authorized to be 

appropriated to the Secretary to provide grants pursuant to section 8, a total 

of $33,000,000, as adjusted under paragraph (4), for the period of fiscal years 

2010 through 2016. 

(4) ADJUSTMENTS TO AMOUNTS AUTHORIZED.—The amounts authorized to be 

appropriated under paragraphs (1) through (3) shall be adjusted by such 

amounts as may be required by reason of changes since April 1, 2007, in construction costs, as indicated by engineering cost indices applicable to the types 

of construction or rehabilitation involved. 

(5) DEPOSIT IN FUND.—Except for the funds to be provided to the Pueblo pursuant to section 5(d), the Secretary shall deposit the funds made available pursuant to paragraphs (1) and (3) into a Taos Settlement Fund to be established 

within the Treasury of the United States so that such funds may be made available to the Pueblo and the Eligible Non-Pueblo Entities upon the Enforcement 

Date as set forth in sections 5(b) and 8(a). 

(d) AUTHORITY OF THE SECRETARY.—The Secretary is authorized to enter into such 

agreements and to take such measures as the Secretary may deem necessary or appropriate to fulfill the intent of the Settlement Agreement and this Act. 

(e) ENVIRONMENTAL COMPLIANCE.— 

(1) EFFECT OF EXECUTION OF SETTLEMENT AGREEMENT.—The Secretary’s execution of the Settlement Agreement shall not constitute a major Federal action 

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

(2) COMPLIANCE WITH ENVIRONMENTAL LAWS.—In carrying out this Act, the 

Secretary shall comply with each law of the Federal Government relating to the 

protection of the environment, including— 

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

seq.); and 

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

(f) CONDITIONS PRECEDENT AND SECRETARIAL FINDING.— 

(1) IN GENERAL.—Upon the fulfillment of the conditions precedent described 

in paragraph (2), the Secretary shall publish in the Federal Register a statement of finding that the conditions have been fulfilled. 

(2) CONDITIONS.—The conditions precedent referred to in paragraph (1) are 

the following: 

(A) The President has signed into law the Taos Pueblo Indian Water 

Rights Settlement Act. 

(B) To the extent that the Settlement Agreement conflicts with this Act, 

the Settlement Agreement has been revised to conform with this Act. 


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(C) The Settlement Agreement, so revised, including waivers and releases 

pursuant to section 11, has been executed by the Parties and the Secretary 

prior to the Parties’ motion for entry of the Partial Final Decree. 

(D) Congress has fully appropriated or the Secretary has provided from 

other authorized sources all funds authorized by paragraphs (1) through (3) 

of subsection (c) so that the entire amounts so authorized have been previously provided to the Pueblo pursuant to sections 5 and 6, or placed in 

the Taos Pueblo Water Development Fund or the Taos Settlement Fund as 

directed in subsection (c). 

(E) The Legislature of the State of New Mexico has fully appropriated the 

funds for the State contributions as specified in the Settlement Agreement, 

and those funds have been deposited in appropriate accounts. 

(F) The State of New Mexico has enacted legislation that amends NMSA 

1978, section 72–6–3 to state that a water use due under a water right secured to the Pueblo under the Settlement Agreement or the Partial Final 

Decree may be leased for a term, including all renewals, not to exceed 99 

years, provided that this condition shall not be construed to require that 

said amendment state that any State law based water rights acquired by 

the Pueblo or by the United States on behalf of the Pueblo may be leased 

for said term. 

(G) A Partial Final Decree that sets forth the water rights and contract 

rights to water to which the Pueblo is entitled under the Settlement Agreement and this Act and that substantially conforms to the Settlement Agreement and Attachment 5 thereto has been approved by the Court and has 

become final and nonappealable. 

(g) ENFORCEMENT DATE.—The Settlement Agreement shall become enforceable, 

and the waivers and releases executed pursuant to section 11 and the limited waiver of sovereign immunity set forth in section 12(a) shall become effective, as of the 

date that the Secretary publishes the notice required by subsection (f)(1). 

(h) EXPIRATION DATE.— 

(1) IN GENERAL.—If all of the conditions precedent described in section (f)(2) 

have not been fulfilled by December 31, 2016, the Settlement Agreement shall 

be null and void, the waivers and releases executed pursuant to section 11 and 

the sovereign immunity waivers in section 12(a) shall not become effective, and 

any unexpended Federal funds, together with any income earned thereon, and 

title to any property acquired or constructed with expended Federal funds, shall 

be returned to the Federal Government, unless otherwise agreed to by the Parties in writing and approved by Congress. 

(2) EXCEPTION.—Notwithstanding subsection (h)(1) or any other provision of 

law, any unexpended Federal funds, together with any income earned thereon, 

made available under sections 5(d) and 6(f) and title to any property acquired 

or constructed with expended Federal funds made available under sections 5(d) 

and 6(f) shall be retained by the Pueblo. 

(3) RIGHT TO SET-OFF.—In the event the conditions precedent set forth in subsection (f)(2) have not been fulfilled by December 31, 2016, the United States 

shall be entitled to set off any funds expended or withdrawn from the amount 

appropriated pursuant to paragraphs (1) and (2) of subsection (c) or made available from other authorized sources, together with any interest accrued, against 

any claims asserted by the Pueblo against the United States relating to water 

rights in the Taos Valley. 

SEC. 11. WAIVERS AND RELEASES. 

(a) CLAIMS BY THE PUEBLO AND THE UNITED STATES.—In return for recognition 

of the Pueblo’s water rights and other benefits, including but not limited to the commitments by non-Pueblo parties, as set forth in the Settlement Agreement and this 

Act, the Pueblo, on behalf of itself and its members, and the United States acting 

in its capacity as trustee for the Pueblo are authorized to execute a waiver and release of claims against the parties to New Mexico v. Abeyta and New Mexico v. 

Arellano, Civil Nos. 7896–BB (U.S.6 D.N.M.) and 7939–BB (U.S. D.N.M.) (consolidated) from— 

(1) all claims for water rights in the Taos Valley that the Pueblo, or the 

United States acting in its capacity as trustee for the Pueblo, asserted, or could 

have asserted, in any proceeding, including but not limited to in New Mexico 

v. Abeyta and New Mexico v. Arellano, Civil Nos. 7896–BB (U.S.6 D.N.M.) and 

7939–BB (U.S. D.N.M.) (consolidated), up to and including the Enforcement 

Date, except to the extent that such rights are recognized in the Settlement 

Agreement or this Act; 

(2) all claims for water rights, whether for consumptive or nonconsumptive 

use, in the Rio Grande mainstream or its tributaries that the Pueblo, or the 


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United States acting in its capacity as trustee for the Pueblo, asserted or could 

assert in any water rights adjudication proceedings except those claims based 

on Pueblo or United States ownership of lands or water rights acquired after 

the Enforcement Date, provided that nothing in this paragraph shall prevent 

the Pueblo or the United States from fully participating in the inter se phase 

of any such water rights adjudication proceedings; 

(3) all claims for damages, losses or injuries to water rights or claims of interference with, diversion or taking of water (including but not limited to claims 

for injury to lands resulting from such damages, losses, injuries, interference 

with, diversion, or taking) in the Rio Grande mainstream or its tributaries or 

for lands within the Taos Valley that accrued at any time up to and including 

the Enforcement Date; and 

(4) all claims against the State of New Mexico, its agencies, or employees relating to the negotiation or the adoption of the Settlement Agreement. 

(b) CLAIMS BY THE PUEBLO AGAINST THE UNITED STATES.—The Pueblo, on behalf 

of itself and its members, is authorized to execute a waiver and release of— 

(1) all claims against the United States, its agencies, or employees relating 

to claims for water rights in or water of the Taos Valley that the United States 

acting in its capacity as trustee for the Pueblo asserted, or could have asserted, 

in any proceeding, including but not limited to in New Mexico v. Abeyta and 

New Mexico v. Arellano, Civil Nos. 7896–BB (U.S.6 D.N.M.) and 7939–BB (U.S. 

D.N.M.) (consolidated); 

(2) all claims against the United States, its agencies, or employees relating 

to damages, losses, or injuries to water, water rights, land, or natural resources 

due to loss of water or water rights (including but not limited to damages, 

losses or injuries to hunting, fishing, gathering, or cultural rights due to loss 

of water or water rights, claims relating to interference with, diversion or taking of water or water rights, or claims relating to failure to protect, acquire, replace, or develop water, water rights or water infrastructure) in the Rio Grande 

mainstream or its tributaries or within the Taos Valley that first accrued at any 

time up to and including the Enforcement Date; 

(3) all claims against the United States, its agencies, or employees for an accounting of funds appropriated by the Act of March 4, 1929 (45 Stat. 1562), the 

Act of March 4, 1931 (46 Stat. 1552), the Act of June 22, 1936 (49 Stat. 1757), 

the Act of August 9, 1937 (50 Stat. 564), and the Act of May 9, 1938 (52 Stat. 

291), as authorized by the Pueblo Lands Act of June 7, 1924 (43 Stat. 636), and 

the Pueblo Lands Act of May 31, 1933 (48 Stat. 108), and for breach of trust 

relating to funds for water replacement appropriated by said Acts that first accrued before the date of enactment of this Act; 

(4) all claims against the United States, its agencies, or employees relating 

to the pending litigation of claims relating to the Pueblo’s water rights in New 

Mexico v. Abeyta and New Mexico v. Arellano, Civil Nos. 7896–BB (U.S.6 

D.N.M.) and 7939–BB (U.S. D.N.M.) (consolidated); and 

(5) all claims against the United States, its agencies, or employees relating 

to the negotiation, Execution or the adoption of the Settlement Agreement, exhibits thereto, the Final Decree, or this Act. 

(c) RESERVATION OF RIGHTS AND RETENTION OF CLAIMS.—Notwithstanding the 

waivers and releases authorized in this Act, the Pueblo on behalf of itself and its 

members and the United States acting in its capacity as trustee for the Pueblo retain— 

(1) all claims for enforcement of the Settlement Agreement, the Final Decree, 

including the Partial Final Decree, the San Juan-Chama Project contract between the Pueblo and the United States, or this Act; 

(2) all claims against persons other than the Parties to the Settlement Agreement for damages, losses or injuries to water rights or claims of interference 

with, diversion or taking of water rights (including but not limited to claims for 

injury to lands resulting from such damages, losses, injuries, interference with, 

diversion, or taking of water rights) within the Taos Valley arising out of activities occurring outside the Taos Valley or the Taos Valley Stream System; 

(3) all rights to use and protect water rights acquired after the date of enactment of this Act; 

(4) all rights to use and protect water rights acquired pursuant to State law, 

to the extent not inconsistent with the Partial Final Decree and the Settlement 

Agreement (including water rights for the land the Pueblo owns in Questa, New 

Mexico); 

(5) all claims relating to activities affecting the quality of water including but 

not limited to any claims the Pueblo might have under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 

et seq.) (including but not limited to claims for damages to natural resources), 


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the Safe Drinking Water Act (42 U.S.C. 300f et seq.), the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), and the regulations implementing 

those Acts; 

(6) all claims relating to damages, losses, or injuries to land or natural resources not due to loss of water or water rights (including but not limited to 

hunting, fishing, gathering, or cultural rights); and 

(7) all rights, remedies, privileges, immunities, powers, and claims not specifically waived and released pursuant to this Act and the Settlement Agreement. 

(d) EFFECT OF SECTION.—Nothing in the Settlement Agreement or this Act— 

(1) affects the ability of the United States acting in its sovereign capacity to 

take actions authorized by law, including but not limited to any laws relating 

to health, safety, or the environment, including but not limited to the Federal 

Water Pollution Control Act (33 U.S.C. 1251 et seq.), the Safe Drinking Water 

Act (42 U.S.C. 300f et seq.), the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.), the Solid Waste 

Disposal Act (42 U.S.C. 6901 et seq.), and the regulations implementing such 

Acts; 

(2) affects the ability of the United States to take actions acting in its capacity as trustee for any other Indian tribe or allottee; 

(3) confers jurisdiction on any State court to— 

(A) interpret Federal law regarding health, safety, or the environment or 

determine the duties of the United States or other parties pursuant to such 

Federal law; or 

(B) conduct judicial review of Federal agency action; or 

(4) waives any claim of a member of the Pueblo in an individual capacity that 

does not derive from a right of the Pueblo. 

(e) TOLLING OF CLAIMS.— 

(1) IN GENERAL.—Each applicable period of limitation and time-based equitable defense relating to a claim described in this section shall be tolled for the 

period beginning on the date of enactment of this Act and ending on the earlier 

of— 

(A) December 31, 2016; or 

(B) the Enforcement Date. 

(2) EFFECT OF SUBSECTION.—Nothing in this subsection revives any claim or 

tolls any period of limitation or time-based equitable defense that expired before 

the date of enactment of this Act. 

(3) LIMITATION.—Nothing in this subsection precludes the tolling of any period of limitations or any time-based equitable defense under any other applicable law. 

SEC. 12. INTERPRETATION AND ENFORCEMENT. 

(a) LIMITED WAIVER OF SOVEREIGN IMMUNITY.—Upon and after the Enforcement 

Date, if any Party to the Settlement Agreement brings an action in any court of 

competent jurisdiction over the subject matter relating only and directly to the interpretation or enforcement of the Settlement Agreement or this Act, and names the 

United States or the Pueblo as a party, then the United States, the Pueblo, or both 

may be added as a party to any such action, and any claim by the United States 

or the Pueblo to sovereign immunity from the action is waived, but only for the limited and sole purpose of such interpretation or enforcement, and no waiver of sovereign immunity is made for any action against the United States or the Pueblo 

that seeks money damages. 

(b) SUBJECT MATTER JURISDICTION NOT AFFECTED.—Nothing in this Act shall be 

deemed as conferring, restricting, enlarging, or determining the subject matter jurisdiction of any court, including the jurisdiction of the court that enters the Partial 

Final Decree adjudicating the Pueblo’s water rights. 

(c) REGULATORY AUTHORITY NOT AFFECTED.—Nothing in this Act shall be deemed 

to determine or limit any authority of the State or the Pueblo to regulate or administer waters or water rights now or in the future. 

SEC. 13. DISCLAIMER. 

Nothing in the Settlement Agreement or this Act shall be construed in any way 

to quantify or otherwise adversely affect the land and water rights, claims, or entitlements to water of any other Indian tribe. 

PURPOSE OF THE BILL

The purpose of H.R. 3254 is to approve the Taos Pueblo Indian 

Water Rights Settlement Agreement, and for other purposes. 


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BACKGROUND AND NEED FOR LEGISLATION

The Taos Pueblo is located approximately 70 miles north of 

Santa Fe, encompassing an area of approximately 100,000 acres of 

land, with more than 2,450 enrolled tribal members. The Pueblo of 

Taos is the only living Native American community designated 

both a World Heritage Site by the United Nations Educational, Scientific, and Cultural Organization (UNESCO), as well as being a 

registered National Historic Landmark. The pueblo’s multi-storied 

adobe buildings have been continuously inhabited for over 1,000 

years. 

H.R. 3254 would settle the water rights claims of Taos Pueblo 

and the 40 year-old litigation dealing with the adjudication of the 

Rio Pueblo de Taos and Rio Hondo stream systems (titled the State 

of New Mexico ex rel. State Engineer, et al. v. Abeyta and the State 

of New Mexico ex rel. State Engineer v. Arellano et al. (Civil Nos. 

7896–BB (U.S. 6 D.N.M.) and 7939–BB (U.S. D.N.M.) (consolidated)). 

A Settlement Agreement was signed in May of 2006 by the Pueblo of Taos, the State of New Mexico, the Taos Valley Acequia Association (representing 55 community ditch associations), the Town of 

Taos, El Prado Water and Sanitation District, and the 12 Taos-area 

Mutual Domestic Water Consumer Associations. Collectively the 

parties to the Agreement represent the majority of water users in 

the Taos Valley. The settlement provides water certainty to both 

tribal and non-tribal communities. 

H.R. 3254 would ratify and approve the Settlement Agreement 

and quantify the Taos Pueblo’s water rights in the Taos Valley System. The settlement secures to the Pueblo water rights totaling 

11,927.51 acre-feet per year (AFY) in depletions, including 2,215 

AFY from the San Juan-Chama Project. The Pueblo agreed to initially forbear using 4,678 AFY of this amount as of the settlement 

signing date to allow for continued non-Indian use. The Pueblo will 

then buy those water rights as they become available. 

COMMITTEE ACTION

H.R. 3254 was introduced on July 17, 2009 by Representative 

Ben Ray Luja ́n (D–NM). The bill was referred to the Committee on 

Natural Resources, and within the Committee to the Subcommittee 

on Water and Power. On September 9, 2009, the Subcommittee 

held a hearing on the bill. 

On September 30, 2009, the Subcommittee was discharged from 

the further consideration of H.R. 3254 and the full Natural Resources Committee met to consider the bill. Subcommittee Chair 

Grace F. Napolitano (D–CA) offered an amendment in the nature 

of a substitute, that responded to certain concerns raised by the 

Department of the Interior. The amendment in the nature of a substitute was adopted by voice vote. The bill, as amended, was then 

ordered favorably reported to the House of Representatives by voice 

vote. 


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SECTION-BY-SECTION ANALYSIS

Section 1. Short title; Table of contents 

Section 1 provides that this Act may be cited as the ‘‘Taos Pueblo 

Indian Water Rights Settlement Act,’’ and provides the table of 

contents. 

Section 2. Purpose 

Section two gives the purposes of the Act as: (1) to approve, ratify and confirm the Taos Pueblo Indian Water Rights Settlement 

Agreement, (2) to authorize and direct the Secretary of the Interior 

to execute the Settlement Agreement and to perform all obligations 

of the Secretary under the Settlement Agreement and Act, and (3) 

to authorize all actions and appropriations necessary for the United 

States to meet its obligations under the Settlement Agreement and 

this Act. 

Section 3. Definitions 

Section 3 provides definitions of terms used in the Act. 

Section 4. Pueblo rights 

Subsection 4(a) states that tribal water rights to which the Pueblo is entitled under the Partial Final Decree will be held in trust 

by the United States, through the Secretary of the Interior, on behalf of the Pueblo. The Tribes’ water rights cannot be lost by forfeiture, abandonment, or permanent alienation. 

Subsection 4(b) states that the Pueblo shall not be denied their 

rights held in trust without the Pueblo’s consent unless repealed by 

a future Act of Congress. 

Section 5. Pueblo water infrastructure and watershed enhancement 

Subsection 5(a) authorizes the Secretary, acting through the 

Commissioner of Reclamation, to provide nonreimbursable grants 

and technical assistance and prescribes the purposes thereof. 

Subsection 5(b) provides that all amounts appropriated or received from other sources will be available for grants to the Pueblo 

after the listed requirements are met. 

Subsection 5(c) authorizes the Secretary to provide financial assistance, pursuant to subsection 5(a) when the Pueblo submits a 

plan that identifies projects to be implemented, consistent with the 

purposes of this section. 

Subsection 5(d) makes $10 million of the monies authorized to be 

appropriated available for early funding through grants to the 

Pueblo to be distributed by the Secretary on receipt of written notice in the form of a Tribal Council resolution, and a plan under 

subsection (c). 

Section 6. Taos Pueblo Water Development Fund 

Subsection 6(a) establishes the Taos Pueblo Water Development 

Fund within the United States Treasury to pay for or reimburse 

the costs incurred by the Pueblo for the purposes listed in the subsection. 

Subsections 6(b,) 6(c) and 6(d) direct the Secretary to manage 

and invest the amounts in the fund and establish the availability 

date. 


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Subsection 6(e) lists the conditions for expenditures and withdrawals, including the submission of a tribal management plan to 

the Secretary by the Pueblo. Subsection 6(f) authorizes that $15 million of the monies authorized to be appropriated under section 10(c)(2) may be used for purposes listed in subsection 6(f)(1) and, upon appropriation or availability from other authorized sources, be distributed by the Secretary to the Pueblo upon receipt of written notice from the Taos 

Tribal Council. 

Subsection 6(g) specifies that funds from the Taos Pueblo Water 

Development Fund are not to be distributed to Pueblo members on 

a per capita basis. 

Section 7. Marketing 

Subsection 7(a) allows the Pueblo, subject to the approval of the 

Secretary under subsection (e), to market water rights secured 

under the Settlement Agreement and partial Final Decree. 

Subsection 7(b) allows the Pueblo, subject to approval of the Secretary, to subcontract San Juan-Chama water made available to 

the Pueblo under this Act to third parties for use within the Taos 

Valley. 

Subsection 7(c) subjects diversions or use of San Juan-Chama 

water off Pueblo Lands to the same federal, state and interstate 

compact requirements as non-Pueblo San Juan-Chama water and 

provides that such diversions or use will not impair water rights 

or increase water depletions within the Taos Valley. 

Subsection 7(d) requires that water leases or subcontracts cannot 

exceed 99 years. The Pueblo is not authorized to permanently alienate any of its rights under the Settlement Agreement, the Partial Final Decree and this Act. 

Subsection 7(e) provides that the Secretary has 180 days after 

submission or 60 days after compliance, if required, with the National Environmental Policy Act of 1969, to approve or disapprove 

any lease or subcontract, but provides that water leases for less 

than seven years do not require the approval of the Secretary. 

Subsection 7(f) provides that the nonuse by a lessee or subcontractor of Pueblo contracted water will not result in a forfeiture, 

abandonment, relinquishment or other loss of the Pueblo’s right. 

Subsection 7(g) provides that the approval authority of the Secretary shall not amend, construe, supersede or preempt any state 

or federal law, interstate compact, or international treaty that pertains to the Colorado River, the Rio Grande, or any of their tributaries. 

Subsection 7(h) provides that nothing in this Act shall be construed to establish, address, prejudice, or prevent any party from 

litigating whether or to what extent any applicable state law, federal law or interstate compact does or does not permit, govern, or 

apply to the use of the Pueblo’s water outside of New Mexico. 

Section 8. Mutual-benefit projects 

Subsection 8(a) directs the Secretary, acting through the Commissioner of Reclamation, to provide financial assistance in the 

form of non-reimbursable grants to eligible non-Pueblo entities to 

plan, permit, design, engineer and construct the Mutual-Benefit 

Projects in accordance with the Settlement Agreement. 


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Subsection 8(b) defines the cost share for the Mutual-Benefit 

Projects to a 75 percent non-reimbursable federal share and 25 percent non-federal cost share. 

Section 9. San Juan-Chama project contracts 

Subsection 9(a) states that contracts issued under this section 

must be in accordance with this Act and the Settlement Agreement. 

Subsection 9(b) directs the Secretary to enter into three repayment contracts, no later than 180 days from the date of enactment 

of this Act, for the delivery of certain amounts of San Juan-Chama 

Project Water, and provides requirements for the contracts. 

Subsection 9(c) waives the entirety of the Pueblo’s share of construction costs for the San Juan-Chama Project as non-reimbursable. Waiver of the Pueblo’s share of construction costs will not result in an increase in the pro rata share of other San Juan-Chama 

water contractors but such costs will be absorbed by the United 

States Treasury or otherwise appropriated to the Department of 

the Interior. 

Section 10. Authorizations, ratifications, confirmations and conditions precedent 

Subsection 10(a) authorizes, ratifies and confirms the Settlement 

Agreement and any amendments made to the Settlement Agreement to make the Agreement consistent with this Act. 

Subsection 10(b) authorizes and directs the Secretary to execute 

the Settlement Agreement as approved by Congress. 

Subsection 10(c) creates a settlement fund and authorizes the ap- propriation of $30 million for fiscal years 2010–2016, as adjusted 

for changes in construction costs since April 1, 2007, to fund the 

water infrastructure and watershed enhancement projects as authorized in section 5. It also authorizes to be appropriated $58 million for fiscal years 2010–2016, as adjusted for changes in construction costs since April 1, 2007, to the Taos Pueblo Water Development Fund, established in section 6(a). This subsection also authorizes to be appropriated $33 million for fiscal years 2010–2016, as 

adjusted for inflation since April 1, 2007 for certain grants pursuant to section 8. Monies in both funds are to be made available 

upon the enforcement date, except as provided in section 5(d). 

Subsection 10(d) and 10(e) authorize and direct the Secretary to 

execute the Agreement as approved by Congress and to carry out 

any and all environmental compliance required by federal law. 

Subsection 10(f) lists the conditions precedent for the settlement 

to come into effect and requires the Secretary to publish in the 

Federal Register a statement once the conditions are met. 

Subsection 10(g) states that the Settlement Agreement is enforceable and the waivers and releases are effective on the date the 

Secretary publishes the notice in the Federal Register. 

Subsection 10(h) states that the agreement is null and void if its 

conditions are not fulfilled by December 31, 2016, with exceptions 

providing that the Pueblo can retain early money made available 

under section 5(d) and 6(f). The United States is entitled under this 

circumstance to set off any funds expended or withdrawn from the 

amount appropriated in the Taos Pueblo Infrastructure and Watershed Fund and the Taos Pueblo Water Development Fund. 


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Section 11. Waivers and releases 

Subsection 11(a) requires the Pueblo and the United States to 

execute specified waivers and releases, including those associated 

with the water rights claims of Taos Pueblo and the United States 

in its capacity as trustee for the Pueblo in the Taos Valley or the 

Rio Grande mainstream or tributary water. 

Subsection 11(b) authorizes the Taos Pueblo to execute specified 

waivers and releases of certain claims against the United States, 

including those associated with Taos Pueblo’s water rights claims. 

Subsection 11(c) identifies certain rights and claims of Taos 

Pueblo and the United States on its behalf that are retained and 

provides that all rights, remedies, privileges, immunities, powers 

and claims not specifically waived are retained. 

Section 11(d) provides that the Settlement Agreement or this Act 

does not affect certain federal laws, trust responsibilities, confer on 

a state court jurisdiction over certain actions, or waive certain 

rights of any individual Pueblo member. 

Section 11(e) provides for the tolling of periods of limitation and 

time-based equitable defenses relating to claims described in this 

section. 

Section 12. Interpretation and enforcement 

Subsection 12(a) provides for a limited waiver of sovereign immunity on the part of the United States or the Pueblo. 

Subsection 12(b) provides that nothing in this Act shall effect the 

subject matter jurisdiction of any court, including the court that 

enters the Partial Final Decree adjudicating the Pueblo’s water 

rights. 

Subsection 12(c) provides that nothing in this Act shall determine or limit the authority of the State of New Mexico or the Pueblo to regulate or administer water or water rights currently or in 

the future. 

Section 13. Disclaimer 

Section 13 provides that nothing in this Act affects any water 

right or claim of any Indian tribe, band or community other than 

the Pueblo of Taos. 

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 

Natural 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. However, clause 3(d)(3)(B) of that rule provides 

that this requirement does not apply when the Committee has inVerDate Nov 24 2008 06:32 Jan 14, 2010 Jkt 089006 PO 00000 Frm 00014 Fmt 6659 Sfmt 6602 E:\HR\OC\HR395.XXX HR395

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cluded in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974. 

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, spending authority, credit authority, or an increase or decrease in revenues or tax expenditures. 

3. General Performance Goals and Objectives. As required by 

clause 3(c)(4) of rule XIII, the general performance goal or objective 

of this bill is to approve the Taos Pueblo Indian Water Rights Settlement Act, and for other purposes. 

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 received the following cost estimate for this bill from the 

Director of the Congressional Budget Office: 

H.R. 3254—Taos Pueblo Indian Water Rights Settlement Act 

Summary: H.R. 3254 would approve and ratify a settlement 

agreement between the Taos Pueblo and the state of New Mexico. 

The agreement would settle the Pueblo’s claims to water rights in 

the state. As part of that agreement, the bill would authorize the 

appropriation of funds to construct and rehabilitate water infrastructure and preserve environmentally sensitive lands in the Taos 

Valley. The bill also would establish a trust fund for the Pueblo to 

acquire water rights and maintain the water infrastructure. Finally, the bill would authorize appropriations to mitigate any adverse impacts on Pueblo lands caused by diverting water to execute 

the settlement agreement. 

Based on information from the Department of the Interior (DOI), CBO estimates that implementing H.R. 3254 would cost $25 million over the 2010–2014 period and an additional $114 million to 

be spent beginning in fiscal year 2017 (as specified by the proposed 

settlement agreement), assuming appropriation of the necessary 

amounts. Enacting H.R. 3254 would not affect direct spending or 

revenues. 

H.R. 3254 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA) 

and would impose no costs on state, local, or tribal governments. 

Estimated cost to the Federal Government: The estimated budgetary impact of H.R. 3254 is shown in the following table. The costs 

of this legislation fall within budget functions 300 (natural resources and environment) and 450 (community and regional development). 

By fiscal year, in millions of dollars— 

2010 2011 2012 2013 2014 2010– 

2014 

CHANGES IN SPENDING SUBJECT TO APPROPRIATION 

Pueblo Water Infrastructure: 

Estimated Authorization Level ................................. 1 3 3 3 0 10 

Estimated Outlays ................................................... 1 3 3 3 0 10 

Water Development Fund: 

Estimated Authorization Level ................................. 3 3 3 3 3 15 

Estimated Outlays ................................................... 3 3 3 3 3 15 


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By fiscal year, in millions of dollars— 

2010 2011 2012 2013 2014 2010– 

2014 

Total Spending Under H.R. 3254: 

Estimated Authorization Level ........................ 4 6 6 6 3 25 

Estimated Outlays .......................................... 4 6 6 6 3 25 

Basis of estimate: For this estimate, CBO assumes that H.R. 

3254 will be enacted early in fiscal year 2010 and that the necessary amounts will be appropriated each year. The enforcement of 

the settlement agreement depends on the completion of a number 

of actions by federal, state, local, and tribal entities. CBO expects 

that those actions will be completed early in fiscal year 2017. Cost 

estimates for the authorized water projects are based on information from DOI and on historical spending patterns for similar activities. 

In 2006, the Taos Pueblo in New Mexico and several other parties signed a settlement agreement resolving a water-rights dispute 

in the Taos Valley. The United States would become a party to that 

agreement upon enactment of H.R. 3254, provided that certain 

other conditions are met. Among those conditions, the Secretary 

would have to publish a statement of findings in the Federal Register indicating that all parties have executed the agreement; the 

U.S. district court would have to issue a partial decree concerning 

the agreement; the Congress would have to appropriate sufficient 

funds to carry out certain provisions of the bill, which CBO estimates would cost $139 million; and New Mexico would have to appropriate amounts it would owe the Pueblo under the agreement. 

Based on information from DOI and assuming appropriation of 

the necessary amounts, CBO estimates that implementing the legislation would cost $25 million over the 2010–2014 period and $114 

million after 2016. Should the Secretary of the Interior not publish 

the required statement of findings by December 31, 2016, verifying 

that all conditions necessary to execute the agreement have been 

met, the agreement would not take effect, and any appropriated 

funds that remain unspent and title to any property acquired or 

constructed with federal funds would be returned to the federal 

government (unless otherwise specified by the bill). 

Pueblo water infrastructure 

Section 5 would authorize the Secretary of the Interior to provide 

grants to the Taos Pueblo to construct and maintain water infrastructure and to restore and protect environmentally sensitive 

lands and watersheds. The bill would authorize the appropriation 

of $30 million (plus additional amounts needed because of increases 

in construction costs) over the 2010–2016 period. Of that amount, 

$10 million could be expended upon appropriation. The remaining 

$20 million would not be available to the Secretary until the enforcement date of the settlement—near the beginning of fiscal year 

2017. CBO estimates that implementing this grant program would 

cost $10 million over the 2010–2014 period and an additional $24 

million beginning in 2017. 


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Water Development Fund 

Section 6 would authorize the appropriation of $58 million (plus 

additional amounts needed because of increases in construction 

costs) over the 2010–2016 period for the Taos Pueblo Water Development Fund. The Secretary of the Interior would be directed to 

hold those funds in trust for the Pueblo until the enforcement date 

of the settlement—the beginning of fiscal year 2017. After that 

date, the Secretary would be required to invest amounts in the 

fund in U.S. Treasury obligations, and those amounts would be 

available to the Pueblo to construct, operate, and maintain certain 

water system facilities owned or operated by the Pueblo. 

Of the total amount authorized to be appropriated to the fund, 

$15 million would be available immediately for the Pueblo to acquire certain water rights. Control over those amounts would be 

transferred to the Pueblo when appropriated. The remaining 

amounts could be spent by the Pueblo only after the settlement 

agreement is executed. Assuming appropriation of the authorized 

amounts, CBO estimates that outlays from the fund would total 

$15 million over the 2010–2014 period and $52 million after 2016. 

Payments to certain tribal trust funds that are held and managed in a fiduciary capacity by the federal government on behalf 

of Indian tribes are treated as payments to a nonfederal entity. As 

a result, CBO expects that the entire amount deposited into the 

Taos Pueblo Water Development Fund (excluding amounts made 

available to acquire water rights) would be recorded as an outlay 

in 2017 when the funds could be spent by the Pueblo. Subsequently, any use of such funds would have no effect on the federal 

budget. Because H.R. 3254 directs the Secretary to invest amounts 

in the fund only after those amounts are available to the Pueblo, 

CBO expects that no interest would accrue on the amounts in the 

fund until after the payments are made in 2017. 

Mutual-benefit projects 

Section 8 would authorize the Secretary of the Interior to provide 

grants to local governments (other than the Taos Pueblo) for 

projects intended to mitigate the impact of diverting water from 

present uses to execute the settlement. The bill would authorize 

the appropriation of $33 million (plus additional amounts needed 

because of increases in constructions costs) over the 2010–2016 period. The funds would be available on the settlement’s enforcement 

date—the beginning of fiscal year 2017. Assuming appropriation of 

the authorized amounts, CBO estimates that implementing this 

grant program would have no cost over the 2010–2014 period and 

would cost $38 million after 2016. 

Intergovernmental and private-sector impact: H.R. 3254 contains 

no intergovernmental or private-sector mandates as defined in 

UMRA. The bill would authorize water projects and provide other 

assistance that would benefit state, local, and tribal governments. 

Any costs to those governments would be incurred voluntarily as 

a condition of federal assistance. 

Previous CBO estimate: On October 13, 2009, CBO transmitted 

a cost estimate for S. 965, the Taos Pueblo Indian Water Rights 

Settlement Act, as ordered reported by the Senate Committee on 

Indian Affairs on September 10, 2009. The House and Senate 


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versions of the legislation are similar, and our cost estimates are 

the same. 

Estimate prepared by: Federal costs: Jeff LaFave; Impact on 

state, local, and tribal governments: Melissa Merrell; Impact on the 

private sector: Marin Randall. 

Estimate approved by: Theresa Gullo, Deputy Assistant Director 

for Budget Analysis. 

COMPLIANCE WITH PUBLIC LAW 104–4

This bill contains no unfunded mandates. 

EARMARK STATEMENT

H.R. 3254 does not contain any congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined in clause 9 of rule 

XXI. 

PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

This bill is not intended to preempt any State, local or tribal law. 

CHANGES IN EXISTING LAW

If enacted, this bill would make no changes in existing law. 


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ADDITIONAL VIEWS 

H.R. 3254, the Taos Pueblo Indian Water Rights Settlement Act 

reflects a large amount of work, time and patience by the people 

of the Pueblo of Taos and their local, state and federal partners. 

It is unacceptable that there has been 40 years of outstanding litigation dealing with the adjudication of the Rio Pueblo de Taos and 

Rio Hondo stream systems (titled the State of New Mexico ex rel. 

State Engineer, et al. v. Abeyta and the State of New Mexico ex rel. 

State Engineer v. Arellano et al. (consolidated)). Enactment of H.R. 

3254 would adjudicate the water rights of the Pueblo of Taos, end 

40 years of litigation, and will provide certainty to the water rights 

of the Pueblo of Taos and the non- pueblos in the Taos Valley. 

Since the Criteria and Procedures have been issued, there has 

been consensus policy that negotiated Indian water rights settlements are preferable to protracted and divisive litigation. In this 

case, according to testimony given by the Bureau of Reclamation 

Commissioner Michael L. Connor, ‘‘the willingness of the Taos 

Pueblo, in particular, to agree to reasonable and necessary compromises has been impressive, and the leadership of the Pueblo negotiation team is to be commended for dedication and steadfastness 

over many years of very difficult negotiations.’’ 

There has also been concerns raised that resolving water rights 

is a way of asking taxpayers to pay for a project from which those 

taxpayers derive no benefit. The commitment of the federal government to act as the Trustee of the Pueblo comes with a responsibility to address the water rights of each tribe or pueblo. 

Included with these views is a November 3, 2009, letter submitted by the Taos Pueblo (Pueblo) in response to the October 22, 

2009 letter, to the Subcommittee on Water and Power by Commissioner Michael L. Connor regarding H.R. 3254. 

Based on testimony provided by the Commissioner of the Bureau 

of Reclamation, if the claims asserted in litigation by the United 

States and the Pueblo were successful, ‘‘the court could award the 

Pueblo rights to approximately 78,000 AFY of diversion and 35,000 

AFY of depletion of water in the basin.’’ The Pueblo of Taos settled 

for a water right of 11,927 acre-feet depletion. With an estimated 

cost of water rights in northern New Mexico to be as much as 

$10,500 to $12,000 per acre-foot of consumptive use per year, the 

value of this water could be estimated to be as much as $240 million. This potential value is much more than the amount that is 

authorized to be appropriated in H.R. 3254, a clear financial benefit to all taxpayers. The Administration further recognizes that 

there is no guarantee that the Pueblo will be able to require 

enough state-based water to pull all its forborne water rights to 

use, which the Pueblo sees as the Pueblo ‘‘bearing’’ the risk. 

The Pueblo has also agreed to language changes proposed by the 

Administration by deleting the exemption from Secretarial apVerDate Nov 24 2008 06:32 Jan 14, 2010 Jkt 089006 PO 00000 Frm 00019 Fmt 6604 Sfmt 6604 E:\HR\OC\HR395.XXX HR395

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proval of subcontracts of the San Juan-Chama Project water from 

terms less than seven years in section 7(e)(2) and extending the 

time for the Secretary of the Interior to enter into the San JuanChama Project contracts to six months after enactment. 

In context, all settlements are unique and focused on the needs 

of the specific of each tribe or pueblo. The difference between settlements is the degree to which the details have been worked out 

before any legislation is introduced. In the case of the Pueblo of 

Taos, the details have been addressed and there is unanimous support for the Settlement between the Pueblo and non-Pueblos within 

the Taos Valley. 

We hope that this Administration will continue to rededicate 

itself and commit its resources to fulfilling its leadership role in the 

settlement negotiations process. 

Enclosure (1). 

GRACE F. NAPOLITANO. MARTIN HEINRICH. 


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(25) 

ADDITIONAL VIEWS OF 

THE HONORABLE TOM MCCLINTOCK 

On September 30, 2009, the Natural Resources Committee met 

to mark up H.R. 3254. This bill authorizes the Secretary of the Interior to approve the settlement of water rights claims of the Taos 

Pueblos. 

This bill rightly attempts to resolve longstanding Indian water 

rights claims, but Congress lacks sufficient information to assess 

whether the $136 million authorized in this legislation is appropriate. Therefore, as Ranking Republican of the House Water and 

Power Subcommittee, I have serious fiscal concerns with this wellintended bill. 

It is important that Congress play a role in settling Indian water 

rights claims, some of which comprise the oldest standing litigation 

in the federal court system. Settling legal claims not only resolves 

litigation but also can help establish water supply certainty for 

water users on and off reservations. 

But Congress must also answer key questions when it considers 

these and other settlements and should not be just a rubber stamp. 

For example, one of the most important questions involving a settlement—especially when American taxpayer dollars will be used— 

is whether resolving the litigation will be advantageous to the federal government compared to its liability under current law. That 

question has not been answered for H.R. 3254. 

If Congress were the board of directors of a private corporation 

deciding whether to approve a negotiated legal settlement, we 

would be guilty of breaching our fiduciary responsibility to stockholders if we made that decision without consulting legal counsel 

to determine the company’s financial exposure absent the settlement. 

Since this question remains unanswered, Congress is forced to be 

the arbitrator between sides involved in the litigation. This is a 

role Congress should not be forced to assume without sufficient information. Given the astounding fact that the current Administration has expressed general fiscal and other reservations about this 

bill, Congress should ask for and deserves answers. As part of this, 

Department of the Interior was asked for its views on the bill as 

passed by the Natural Resources Committee. The Department’s response to Congress, which is attached, clearly indicates there are 

numerous issues that still need to be resolved. 

I also sent a letter on September 25, 2009 to the Department of 

Justice asking for opinions on this legislation. The letter specifically asks the Attorney General to provide his view on the ‘‘likelihood that the recipients of water rights and funds transferred by 

these settlements would prevail on the merits of their claims and 

whether these settlement amounts represent a net benefit to the 

taxpayers as compared to the consequences and costs of litigation.’’ 


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To date, I have not received a response from Justice to this question, and I fundamentally believe that Congress needs this and 

other answers before moving forward with spending hundreds of 

millions of American taxpayer dollars. 

My request is based on precedent. In an appearance before the 

Natural Resources Committee on legislation resolving Colville Indian claims, a Clinton Administration Justice Department official 

testified in 1994, ‘‘[T]he Federal government is not that well postured for a victory on this claim which has been pending for over 

40 years. Absent the settlement, we could well litigate it for another ten years and the outcome could easily be a significant cost 

to the taxpayers and the public.’’ This testimony was very helpful 

in moving that legislation forward. According to the Congressional 

Research Service, Justice Department officials have testified on additional settlements pending before Congress, so there is no reason 

why this Congress should act without similar information on this 

bill. 

Without these transparent answers and with the large amount 

of taxpayer funding in this bill—scored by the Congressional Budget Office as $25 million for 2010–2014 and an additional $114 million after 2017—I have serious concerns with the way this Congress and the Obama Administration are moving forward on H.R. 

3254 and Indian water rights settlement bills in general. 

TOM MCCLINTOCK. 


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