Pueblos of Jemez and Zia Water Rights Settlement Act of 2022

To approve the settlement of water rights claims of the Pueblos of Jemez and Zia in the State of New Mexico, and for other purposes. 1. Short title; table of contents (a) Short title This Act may be cited as the Pueblos of Jemez and Zia Water Rights Settlement Act of 2022 (b) Table of contents The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Purposes. Sec. 3. Definitions. Sec. 4. Ratification of Agreement. Sec. 5. Pueblo Water Right. Sec. 6. Settlement trust funds. Sec. 7. Funding. Sec. 8. Waivers and releases of claims. Sec. 9. Satisfaction of claims. Sec. 10. Enforceability date. Sec. 11. Miscellaneous provisions. Sec. 12. Antideficiency. 2. Purposes The purposes of this Act are— (1) to achieve a fair, equitable, and final settlement of all claims to water rights in the Jemez River Stream System in the State of New Mexico for— (A) the Pueblo of Jemez; (B) the Pueblo of Zia; and (C) the United States, acting as trustee for the Pueblos of Jemez and Zia; (2) to authorize, ratify, and confirm the Agreement entered into by the Pueblos, the State, and various other parties to the extent that the Agreement is consistent with this Act; (3) to authorize and direct the Secretary— (A) to execute the Agreement; and (B) to take any other actions necessary to carry out the Agreement in accordance with this Act; and (4) to authorize funds necessary for the implementation of the Agreement and this Act. 3. Definitions In this Act: (1) Adjudication The term Adjudication (2) Agreement The term Agreement (A) the document entitled Pueblos of Jemez and Zia Water Rights Settlement Agreement (B) any amendment to the document referred to in subparagraph (A) (including an amendment to an appendix or exhibit) that is executed to ensure that the Agreement is consistent with this Act. (3) Enforceability Date The term Enforceability Date (4) Jemez River Stream System The term Jemez River Stream System (5) Partial Final Judgment and Decree The term Partial Final Judgment and Decree (A) that is substantially in the form described in the Agreement, as amended to ensure consistency with this Act; and (B) from which no further appeal may be taken. (6) Pueblo The term Pueblo (A) the Pueblo of Jemez; or (B) the Pueblo of Zia. (7) Pueblo Land The term Pueblo Land (A) held by the United States in trust for a Pueblo within the Jemez River Stream System; (B) owned by a Pueblo within the Jemez River Stream System before the date on which a court approves the Agreement; or (C) acquired by a Pueblo on or after the date on which a court approves the Agreement if the real property— (i) is located within the exterior boundaries of the Pueblo, as recognized and confirmed by a patent issued under the Act of December 22, 1858 (11 Stat. 374, chapter V); (ii) is located within the exterior boundaries of any territory set aside for a Pueblo by law, Executive order, or court decree; (iii) is owned by a Pueblo or held by the United States in trust for the benefit of a Pueblo outside the Jemez River Stream System that is located within the exterior boundaries of the Pueblo, as recognized and confirmed by a patent issued under the Act of December 22, 1858 (11 Stat. 374, chapter V); or (iv) is located within the exterior boundaries of any real property located outside the Jemez River Stream System set aside for a Pueblo by law, Executive order, or court decree if the land is within or contiguous to land held by the United States in trust for the Pueblo as of June 1, 2022. (8) Pueblo Trust Fund The term Pueblo Trust Fund (A) the Pueblo of Jemez Settlement Trust Fund established under section 6(a); and (B) the Pueblo of Zia Settlement Trust Fund established under that section. (9) Pueblo Water Right The term Pueblo Water Right (A) as identified in the Agreement and section 5 of this Act; and (B) as confirmed in the Partial Final Judgment and Decree. (10) Pueblos The term Pueblos (A) the Pueblo of Jemez; and (B) the Pueblo of Zia. (11) Secretary The term Secretary (12) State The term State 4. Ratification of Agreement (a) Ratification (1) In general Except as modified by this Act and to the extent that the Agreement does not conflict with this Act, the Agreement is authorized, ratified, and confirmed. (2) Amendments If an amendment to the Agreement, or to any appendix or exhibit attached to the Agreement requiring the signature of the Secretary, is executed in accordance with this Act to make the Agreement consistent with this Act, the amendment is authorized, ratified, and confirmed. (b) Execution (1) In general To the extent the Agreement does not conflict with this Act, the Secretary shall execute the Agreement, including all appendices or exhibits to, or parts of, the Agreement requiring the signature of the Secretary. (2) Modifications Nothing in this Act prohibits the Secretary, after execution of the Agreement, from approving any modification to the Agreement, including an appendix or exhibit to the Agreement, that is consistent with this Act, to the extent that the modification does not otherwise require congressional approval under section 2116 of the Revised Statutes ( 25 U.S.C. 177 (c) Environmental compliance (1) In general In implementing the Agreement and this Act, the Secretary shall comply with— (A) the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq. (B) the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq. (C) all other applicable Federal environmental laws and regulations. (2) Compliance (A) In general In implementing the Agreement and this Act, the Pueblos shall prepare any necessary environmental documents, consistent with— (i) the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq. (ii) the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq. (iii) all other applicable Federal environmental laws and regulations. (B) Authorizations The Secretary shall— (i) independently evaluate the documentation required under subparagraph (A); and (ii) be responsible for the accuracy, scope, and contents of that documentation. (3) Effect of execution The execution of the Agreement by the Secretary under this section shall not constitute a major Federal action under the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq. (4) Costs Any costs associated with the performance of the compliance activities under this subsection shall be paid from funds deposited in the Pueblo Trust Funds, subject to the condition that any costs associated with the performance of Federal approval or other review of such compliance work or costs associated with inherently Federal functions shall remain the responsibility of the Secretary. 5. Pueblo Water Right (a) Trust status of the Pueblo Water Right The Pueblo Water Right shall be held in trust by the United States on behalf of the Pueblos in accordance with the Agreement and this Act. (b) Forfeiture and abandonment The Pueblo Water Right shall not be subject to loss through non-use, forfeiture, abandonment, or other operation of law. (c) Use Any use of the Pueblo Water Right shall be subject to the terms and conditions of the Agreement and this Act. (d) Authority of the Pueblos (1) In general The Pueblos shall have the authority to allocate, distribute, and lease the Pueblo Water Right for use on Pueblo Land in accordance with the Agreement, this Act, and applicable Federal law. (2) Use off Pueblo land The Pueblos may allocate, distribute, and lease the Pueblo Water Right for use off Pueblo Land in accordance with the Agreement, this Act, and applicable Federal law, subject to the approval of the Secretary. (e) Administration (1) No alienation The Pueblos shall not permanently alienate any portion of the Pueblo Water Right. (2) Purchases or grants of land from Indians An authorization provided by this Act for the allocation, distribution, leasing, or other arrangement entered into pursuant to this Act shall be considered to satisfy any requirement for authorization of the action required by Federal law. (3) Prohibition on forfeiture The non-use of all or any portion of the Pueblo Water Right by any water user shall not result in the forfeiture, abandonment, relinquishment, or other loss of all or any portion of the Pueblo Water Right. 6. Settlement trust funds (a) Establishment The Secretary shall establish 2 trust funds, to be known as the Pueblo of Jemez Settlement Trust Fund Pueblo of Zia Settlement Trust Fund (b) Deposits The Secretary shall deposit in each Pueblo Trust Fund the amounts made available pursuant to section 7(a). (c) Management and interest (1) Management On receipt and deposit of funds into the Pueblo Trust Funds under subsection (b), the Secretary shall manage, invest, and distribute all amounts in the Pueblo Trust Funds in a manner that is consistent with the investment authority of the Secretary under— (A) the first section of the Act of June 24, 1938 ( 25 U.S.C. 162a (B) the American Indian Trust Fund Management Reform Act of 1994 ( 25 U.S.C. 4001 et seq. (C) this subsection. (2) Investment earnings In addition to the deposits made to each Pueblo Trust Fund under subsection (b), any investment earnings, including interest, earned on those amounts held in each Pueblo Trust Fund are authorized to be used in accordance with subsections (e) and (g). (d) Availability of amounts (1) In general Amounts appropriated to, and deposited in, each Pueblo Trust Fund, including any investment earnings (including interest) earned on those amounts, shall be made available to each Pueblo by the Secretary beginning on the Enforceability Date, subject to the requirements of this section, except for funds to be made available to the Pueblos pursuant to paragraph (2). (2) Use of funds Notwithstanding paragraph (1), $25,000,000 of the amounts deposited in each Pueblo Trust Fund shall be available to the appropriate Pueblo for— (A) developing economic water development plans; (B) preparing environmental compliance documents; (C) preparing water project engineering designs; (D) establishing and operating a water resource department; (E) installing supplemental irrigation groundwater wells; and (F) developing water measurement and reporting water use plans. (e) Withdrawals (1) Withdrawals under the American Indian Trust Fund Management Reform Act of 1994 (A) In general Each Pueblo may withdraw any portion of the amounts in the Pueblo Trust Fund on approval by the Secretary of a Tribal management plan submitted by the Pueblo in accordance with the American Indian Trust Fund Management Reform Act of 1994 ( 25 U.S.C. 4001 et seq. (B) Requirements In addition to the requirements under the American Indian Trust Fund Management Reform Act of 1994 ( 25 U.S.C. 4001 et seq. (C) Enforcement The Secretary may carry out such judicial and administrative actions as the Secretary determines to be necessary to enforce the Tribal management plan under this paragraph to ensure that amounts withdrawn by each Pueblo from the Pueblo Trust Fund of the Pueblo under subparagraph (A) are used in accordance with this Act. (2) Withdrawals under expenditure plan (A) In general Each Pueblo may submit to the Secretary a request to withdraw funds from the Pueblo Trust Fund of the Pueblo pursuant to an approved expenditure plan. (B) Requirements To be eligible to withdraw amounts under an expenditure plan under subparagraph (A), each Pueblo shall submit to the Secretary an expenditure plan for any portion of the Pueblo Trust Fund that the Pueblo elects to withdraw pursuant to that subparagraph, subject to the condition that the amounts shall be used for the purposes described in this Act. (C) Inclusions An expenditure plan under this paragraph shall include a description of the manner and purpose for which the amounts proposed to be withdrawn from the Pueblo Trust Fund will be used by the Pueblo, in accordance with this subsection and subsection (g). (D) Approval The Secretary shall approve an expenditure plan submitted under subparagraph (A) if the Secretary determines that the plan— (i) is reasonable; and (ii) is consistent with, and will be used for, the purposes of this Act. (E) Enforcement The Secretary may carry out such judicial and administrative actions as the Secretary determines to be necessary to enforce an expenditure plan to ensure that amounts disbursed under this paragraph are used in accordance with this Act. (f) Effect of section Nothing in this section gives the Pueblos the right to judicial review of a determination of the Secretary relating to whether to approve a Tribal management plan under paragraph (1) of subsection (e) or an expenditure plan under paragraph (2) of that subsection except under subchapter II of chapter 5, and chapter 7, of title 5, United States Code (commonly known as the Administrative Procedure Act (g) Uses Amounts from a Pueblo Trust Fund may only be used by the appropriate Pueblo for the following purposes: (1) Planning, permitting, designing, engineering, constructing, reconstructing, replacing, rehabilitating, operating, or repairing water production, treatment, or delivery infrastructure, including for domestic and municipal use, on-farm improvements, or wastewater infrastructure. (2) Watershed protection and enhancement, support of agriculture, water-related Pueblo community welfare and economic development, and costs related to implementation of the Agreement. (3) Planning, permitting, designing, engineering, construction, reconstructing, replacing, rehabilitating, operating, or repairing water production of delivery infrastructure of the Augmentation Project, as set forth in the Agreement. (4) Ensuring environmental compliance in the development and construction of projects under this Act. (h) Liability The Secretary and the Secretary of the Treasury shall not be liable for the expenditure or investment of any amounts withdrawn from a Pueblo Trust Fund by a Pueblo under paragraph (1) or (2) of subsection (e). (i) Expenditure reports Each Pueblo shall annually submit to the Secretary an expenditure report describing accomplishments and amounts spent from use of withdrawals under a Tribal management plan or an expenditure plan under paragraph (1) or (2) of subsection (e), as applicable. (j) No per capita distributions No portion of a Pueblo Trust Fund shall be distributed on a per capita basis to any member of a Pueblo. (k) Title to infrastructure Title to, control over, and operation of any project constructed using funds from a Pueblo Trust Fund shall remain in the appropriate Pueblo. (l) Operation, maintenance, and replacement All operation, maintenance, and replacement costs of any project constructed using funds from a Pueblo Trust Fund shall be the responsibility of the appropriate Pueblo. 7. Funding (a) Mandatory appropriation Out of any money in the Treasury not otherwise appropriated, the Secretary of the Treasury shall transfer to the Secretary— (1) for deposit in the Pueblo of Jemez Settlement Trust Fund established under section 6(a) $290,000,000, to remain available until expended, withdrawn, or reverted to the general fund of the Treasury; and (2) for deposit in the Pueblo of Zia Settlement Trust Fund established under that section $200,000,000, to remain available until expended, withdrawn, or reverted to the general fund of the Treasury. (b) Fluctuation in costs (1) In general The amount appropriated under subsection (a) shall be increased or decreased, as appropriate, by such amounts as may be justified by reason of ordinary fluctuations in costs, as indicated by the Bureau of Reclamation Construction Cost Index–Composite Trend. (2) Construction costs adjustment The amount appropriated under subsection (a) shall be adjusted to address construction cost changes necessary to account for unforeseen market volatility that may not otherwise be captured by engineering cost indices, as determined by the Secretary, including repricing applicable to the types of construction and current industry standards involved. (3) Repetition The adjustment process under this subsection shall be repeated for each subsequent amount appropriated until the applicable amount, as adjusted, has been appropriated. (4) Period of indexing The period of indexing adjustment under this subsection for any increment of funding shall start on October 1, 2021, and end on the date on which the funds are deposited in the applicable Pueblo Trust Fund. (c) State cost share The State shall contribute— (1) $3,400,000, as adjusted for inflation pursuant to the Agreement, to the San Ysidro Community Ditch Association for capital and operating expenses of the mutual benefit Augmentation Project; (2) $16,159,000, as adjusted for inflation pursuant to the Agreement, for Jemez River Basin Water Users Coalition acequia ditch improvements; and (3) $500,000, as adjusted for inflation, to mitigate impairment to non-Pueblo domestic and livestock groundwater rights as a result of new Pueblo water use. 8. Waivers and releases of claims (a) In general (1) Waivers and releases of claims by Pueblos and United States as trustee for pueblos Subject to the reservation of rights and retention of claims under subsection (c), as consideration for recognition of the Pueblo Water Right and other benefits described in the Agreement and this Act, the Pueblos and the United States, acting as trustee for the Pueblos, shall execute a waiver and release of all claims for— (A) water rights within the Jemez River Stream System that the Pueblos, or the United States acting as trustee for the Pueblos, asserted or could have asserted in any proceeding, including the Adjudication, on or before the Enforceability Date, except to the extent that such a right is recognized in the Agreement and this Act; and (B) damages, losses, or injuries to water rights or claims of interference with, diversion of, or taking of water (including claims for injury to land resulting from such damages, losses, injuries, interference, diversion, or taking) in the Jemez River Stream System against any party to a settlement, including the members and parciantes of signatory acequias, that accrued at any time up to and including the Enforceability Date. (2) Waivers and releases of claims by Pueblos against United States Subject to the reservation of rights and retention of claims under subsection (c), each Pueblo shall execute a waiver and release of all claims against the United States (including any agency or employee of the United States) for water rights within the Jemez River Stream System first arising before the Enforceability Date relating to— (A) water rights within the Jemez River Stream System that the United States, acting as trustee for the Pueblos, asserted or could have asserted in any proceeding, including the Adjudication, except to the extent that such rights are recognized as part of the Pueblo Water Right under this Act; (B) foregone benefits from non-Pueblo use of water, on and off Pueblo Land (including water from all sources and for all uses), within the Jemez River Stream System; (C) damage, loss, or injury to water, water rights, land, or natural resources due to loss of water or water rights (including 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 of, or taking of water, or claims relating to a failure to protect, acquire, replace, or develop water, water rights, or water infrastructure) within the Jemez River Stream System; (D) a failure to establish or provide a municipal, rural, or industrial water delivery system on Pueblo Land within the Jemez River Stream System; (E) damage, loss, or injury to water, water rights, land, or natural resources due to construction, operation, and management of irrigation projects on Pueblo Land or Federal land (including damages, losses, or injuries to fish habitat, wildlife, and wildlife habitat) within the Jemez River Stream System; (F) a failure to provide for operation, maintenance, or deferred maintenance for any irrigation system or irrigation project within the Jemez River Stream System; (G) a failure to provide a dam safety improvement to a dam on Pueblo Land within the Jemez River Stream System; (H) the litigation of claims relating to any water right of a Pueblo within the Jemez River Stream System; and (I) the negotiation, execution, or adoption of the Agreement (including exhibits or appendices) and this Act. (b) Effective date The waivers and releases described in subsection (a) shall take effect on the Enforceability Date. (c) Reservation of rights and retention of claims Notwithstanding the waivers and releases under subsection (a), the Pueblos and the United States, acting as trustee for the Pueblos, shall retain all claims relating to— (1) the enforcement of, or claims accruing after the Enforceability Date relating to water rights recognized under the Agreement relating to, any final court decree or this Act; (2) activities affecting the quality of water, including claims under— (A) the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9601 et seq. (B) the Safe Drinking Water Act ( 42 U.S.C. 300f et seq. (C) the Federal Water Pollution Control Act ( 33 U.S.C. 1251 et seq. Clean Water Act (D) any regulations implementing the Acts described in subparagraphs (A) through (C); (3) the right to use and protect water rights acquired after the date of enactment of this Act; (4) damage, loss, or injury to land or natural resources that is not due to loss of water or water rights, including hunting, fishing, gathering, or cultural rights; (5) all rights, remedies, privileges, immunities, and powers not specifically waived and released pursuant to this Act or the Agreement; and (6) loss of water or water rights in locations outside of the Jemez River Stream System. (d) Effect of Agreement and Act Nothing in the Agreement or this Act— (1) reduces or extends the sovereignty (including civil and criminal jurisdiction) of any government entity; (2) affects the ability of the United States, as sovereign, to carry out any activity authorized by law, including— (A) the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9601 et seq. (B) the Safe Drinking Water Act ( 42 U.S.C. 300f et seq. (C) the Federal Water Pollution Control Act ( 33 U.S.C. 1251 et seq. Clean Water Act (D) the Solid Waste Disposal Act ( 42 U.S.C. 6901 et seq. (E) any regulations implementing the Acts described in subparagraphs (A) though (D); (3) affects the ability of the United States to act as trustee for the Pueblos (consistent with this Act), any other Pueblo or Indian Tribe, or an allottee of any other Indian Tribe; (4) confers jurisdiction on any State court— (A) to interpret Federal law relating to health, safety, or the environment; (B) to determine the duties of the United States or any other party under Federal law regarding health, safety, or the environment; (C) to conduct judicial review of any Federal agency action; or (D) to interpret Pueblo or Tribal law; or (5) waives any claim of a member of a Pueblo in an individual capacity that does not derive from a right of the Pueblos. (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 Enforceability 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 section precludes the tolling of any period of limitation or any time-based equitable defense under any other applicable law. (f) Expiration (1) In general This Act shall expire in any case in which the Secretary fails to publish a statement of findings under section 10 by not later than— (A) July 1, 2030; or (B) such alternative later date as is agreed to by the Pueblos and the Secretary, after providing reasonable notice to the State. (2) Consequences If this Act expires under paragraph (1)— (A) the waivers and releases under subsection (a) shall— (i) expire; and (ii) have no further force or effect; (B) the authorization, ratification, confirmation, and execution of the Agreement under section 4 shall no longer be effective; (C) any action carried out by the Secretary, and any contract or agreement entered into, pursuant to this Act shall be void; (D) any unexpended Federal funds appropriated or made available to carry out the activities authorized by this Act, together with any interest earned on those funds, and any water rights or contracts to use water and title to other property acquired or constructed with Federal funds appropriated or made available to carry out the activities authorized by this Act shall be returned to the Federal Government, unless otherwise agreed to by the Pueblos and the United States and approved by Congress; and (E) except for Federal funds used to acquire or construct property that is returned to the Federal Government under subparagraph (D), the United States shall be entitled to offset any Federal funds made available to carry out this Act that were expended or withdrawn, or any funds made available to carry out this Act from other Federal authorized sources, together with any interest accrued on those funds, against any claims against the United States— (i) relating to— (I) water rights in the State asserted by— (aa) the Pueblos; or (bb) any user of the Pueblo Water Right; or (II) any other matter covered by subsection (a)(2); or (ii) in any future settlement of water rights of the Pueblos. 9. Satisfaction of claims The benefits provided under this Act shall be in complete replacement of, complete substitution for, and full satisfaction of any claim of the Pueblos against the United States that are waived and released by the Pueblos pursuant to section 8(a). 10. Enforceability date The Enforceability Date shall be the date on which the Secretary publishes in the Federal Register a statement of findings that— (1) to the extent that the Agreement conflicts with this Act, the Agreement has been amended to conform with this Act; (2) the Agreement, as amended, includes the waivers and releases of claims set forth in section 8, and has been executed by all parties to the Agreement, including the United States; (3) the United States District Court for the District of New Mexico has approved the Agreement and has entered a Partial Final Judgment and Decree; (4) all of the amounts appropriated under section 7 have been appropriated and deposited in the designated accounts of the applicable Pueblo Trust Fund; (5) the State has— (A) provided the funding under section 7(c)(2) into appropriate funding accounts; (B) provided the funding under section 7(c)(1) or entered into a funding agreement with the intended beneficiaries for that funding; and (C) enacted legislation to amend State law to provide that a Pueblo Water Right may be leased for a term of not to exceed 99 years, including renewals; and (6) the waivers and releases under section 8(a) have been executed by the Pueblos and the Secretary. 11. Miscellaneous provisions (a) No waiver of sovereign immunity by the United States Nothing in this Act waives the sovereign immunity of the United States. (b) Other Tribes not adversely affected Nothing in this Act quantifies or diminishes any land or water right, or any claim or entitlement to land or water, of an Indian Tribe, band, or community other than the Pueblos. (c) Effect on current law Nothing in this Act affects any provision of law (including regulations) in effect on the day before the date of enactment of this Act with respect to pre-enforcement review of any Federal environmental enforcement action. (d) Conflict In the event of a conflict between the Agreement and this Act, this Act shall control. 12. Antideficiency The United States shall not be liable for any failure to carry out any obligation or activity authorized by this Act, including any obligation or activity under the Agreement, if adequate appropriations are not provided expressly by Congress to carry out the purposes of this Act.

Summary: Pueblos of Jemez and Zia Water Rights Settlement Act of 2022 This bill authorizes, ratifies, and confirms a specified water rights settlement agreement entered into by the Pueblo of Jemez, the Pueblo of Zia, the United States, New Mexico, and others, thus satisfying claims to water rights in the Jemez River Stream System in New Mexico. Additionally, the bill establishes and provides funding for two settlement trust funds.