II 114th CONGRESS 2d Session S. 3482 IN THE SENATE OF THE UNITED STATES November 17, 2016 Mr. Hatch introduced the following bill; which was read twice and referred to the Committee on Indian Affairs A BILL To approve the settlement of the water rights claims of the Navajo Nation in Utah, to authorize construction of projects in connection therewith, and for other purposes.

1. Short title This Act may be cited as the Navajo Utah Water Rights Settlement Act of 2016 . 2. Purposes The purposes of this Act are— (1) to eliminate controversy over the quantification, allocation, distribution, and use of all waters derived by or through the Navajo Nation in the State of Utah pursuant to all legal theories; (2) to recognize and protect the reserved water rights of the Navajo Nation and all those possessing water rights derived by or through the Navajo Nation; (3) to protect State appropriative water rights; (4) to provide Navajo and non-Indian citizens in the Upper Colorado River Basin in Utah with certainty regarding water rights, water management, and administration that will allow them to plan for their futures; (5) to approve, ratify, and confirm the agreement; (6) to authorize and direct the Secretary to execute and perform duties under the agreement and this Act; (7) to authorize the actions and appropriations necessary for the United States to fulfill its legal and trust obligations to the tribes as provided in the agreement and this Act; (8) to provide sufficient water supplies and facilities for delivery of those supplies needed to develop and maintain the Navajo Reservation in Utah as a permanent homeland for the Navajo Nation and its members; and (9) to promote the economic development and economic self-sufficiency of the Navajo Nation in Utah. 3. Findings Congress finds the following: (1) It is the policy of the United States, in keeping with the trust responsibility of the United States to Indian tribes, to settle Indian water rights claims whenever possible without lengthy and costly litigation. (2) The water rights settlements described in paragraph (1) typically require congressional review and approval. (3) The Navajo Nation and the United States, acting as trustee for the Navajo Nation and allottees of the Navajo Nation, claim the right to an unquantified amount of water from the San Juan River in the Upper Colorado River Basin in Utah. (4) Consistent with the policy of the United States, this Act settles the water rights claims of the Navajo Nation and the United States within the State of Utah, acting as trustee for the Navajo Nation and allottees of the Navajo Nation, without litigation. (5) This Act settles the water rights claims of the Navajo Nation and the United States within the State of Utah, acting as trustee for the Navajo Nation and allottees of the Navajo Nation, by providing a permanent source of water for the Navajo Nation in Utah, a water settlement fund to be used for the construction of drinking water infrastructure, and the financing of other modes of water delivery on the Navajo Nation in Utah in exchange for limiting the legal exposure and litigation expenses of the United States and the State of Utah. 4. Definitions (1) Afy The term afy means acre-feet per year. (2) Agreement The term agreement means the document entitled Navajo Utah Water Rights Settlement Agreement and the exhibits attached thereto. (3) Allottee The term allottee means individual members of the Navajo Nation or other Indian tribe for whom the United States holds in trust title to an allotment on the Navajo Nation Reservation in Utah. (4) Allotment The term allotment means— (A) a parcel of land located within the Reservation; or (B) Bureau of Indian Affairs parcel number 792 634511 in San Juan County, Utah, consisting of 160 acres located in Township 41S, Range 20E, sections 11, 12, and 14, originally set aside by the United States for the benefit of an individual identified in the allotting document as a Navajo Indian and held in trust by the United States. (5) Enforceability date The term enforceability date means the date on which the Secretary publishes in the Federal Register the statement of findings described in section 9(a) of this Act. (6) General stream adjudication The term general stream adjudication means the adjudication pending, as of the date of enactment, in the Seventh Judicial District in and for Grand County, State of Utah, commonly known as the Southeastern Colorado River General Adjudication , Civil No. 810704477, conducted pursuant to State law. (7) Indian Health Service The term Indian Health Service means the United States Indian Health Service. (8) Injury to water rights The term injury to water rights means the loss, deprivation, impairment, or diminution of water rights. (9) Member The term member means any person who is a duly enrolled member of the Navajo Nation. (10) Navajo Nation or Nation The term Navajo Nation or Nation means a body politic and federally recognized Indian nation, as published on the list established under section 104(a) of the Federally Recognized Indian Tribe List Act of 1994 ( 25 U.S.C. 5130 et seq. ), also known variously as the Navajo Nation , the Navajo Nation of Arizona, New Mexico, & Utah , and the Navajo Nation of Indians and other similar names, and includes all bands of Navajo Indians and chapters of the Navajo Nation and all divisions, agencies, officers, and agents thereof. (11) Navajo water development projects The term Navajo water development projects means the projects constructed, in whole or in part, using monies from the Navajo Water Development Fund. (12) OM&R The term OM&R means operation, maintenance, and replacement. (13) Parties The term parties means the Navajo Nation, the State, and the United States. (14) Reclamation The term Reclamation means the United States Bureau of Reclamation. (15) Reservation The term Reservation means, for purposes of this agreement, the Reservation of the Navajo Nation as in existence on the date of enactment of this Act and depicted on the map attached to the agreement as Exhibit A. (16) Secretary The term Secretary means the Secretary of the United States Department of the Interior or a duly authorized representative thereof. (17) State The term State means the State of Utah and all officers, agents, departments, and political subdivisions thereof. (18) United states The term United States means the United States of America and all departments, agencies, bureaus, officers, and agents thereof. (19) United States acting in its trust capacity The term United States acting in its trust capacity means the United States acting for the benefit of the Navajo Nation or for the benefit of allottees. (20) Water rights The term water rights means rights under tribal, State, and Federal law to divert, pump, impound, store, use, or reuse water within the State. 5. Ratification of Agreement (a) Approval by Congress Except to the extent that any provision of the agreement conflicts with this Act, Congress approves, ratifies, and confirms the agreement (including any amendments to the agreement that are executed to make the agreement consistent with this Act). (b) Execution by Secretary The Secretary is authorized and directed to promptly, and no later than 180 days from the date that this Act becomes law, execute the agreement to the extent that the agreement does not conflict with this Act, including— (1) any exhibits to the agreement requiring the signature of the Secretary; and (2) any amendments to the agreement necessary to make the agreement consistent with this Act. (c) Authority of Secretary The Secretary may carry out any action that the Secretary determines is necessary or appropriate to implement the agreement and this Act. (d) Environmental compliance (1) Environmental compliance The Secretary shall comply with all aspects of the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq. ), the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq. ), and other applicable Federal environmental laws and regulations. (2) Execution of the Agreement Execution of the agreement by the Secretary as provided for in this Act shall not constitute a major Federal action under the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq. ). (3) Lead agency Reclamation, or any United States or Navajo Nation agency with an intergovernmental agreement with the Secretary pursuant to subsection (a) of section 6, is authorized to be designated as the lead or joint lead agency with respect to environmental compliance for the Navajo water development projects. 6. Authorization for construction of Navajo water development projects (a) In general The Secretary, acting through the Commissioner of Reclamation, shall plan, design, and construct the water diversion, delivery, and conservation features of the Navajo water development projects. The Secretary is authorized to enter into intergovernmental agreements with other United States, State, or Navajo Nation agencies as necessary or appropriate to implement this section. (b) Lead agency Reclamation, or any Federal or Navajo Nation agency with an intergovernmental agreement with the Secretary pursuant to subsection (a), is authorized to serve as the lead agency or joint lead agencies with respect to any activity to plan, design, and construct the water diversion, delivery, and conservation features of any Navajo water development project to be constructed by that agency. (c) Scope The agreement and this Act contemplate a comprehensive approach to addressing identified Reservation water needs by providing funds for domestic and municipal water supply and distribution infrastructure and agricultural water conservation. To allow the Navajo Nation flexibility in meeting the needs of its people over time as both circumstances and technologies evolve, the costs to meet Reservation water needs determined in the studies identified in the agreement were used to establish the dollar amount of the Navajo Water Development Fund. To help ensure that water supply and distribution systems constructed pursuant to the agreement and this Act can be successfully developed and transitioned to be user-supported systems, the agreement and this Act also provide for a Navajo OM&R Trust Account. (d) Final water supply system projects (1) Design review Prior to beginning construction activities for any water supply system as described in the agreement and constructed pursuant to this section, the Secretary shall review the design of the proposed Navajo water development projects and perform value-engineering analyses. (2) Negotiation and agreement with the Navajo Nation On the basis of the review described in paragraph (1), the Secretary shall negotiate and reach agreement with the Navajo Nation regarding appropriate changes to the final design so that the final design meets applicable industry standards, as well as changes, if any, that would allow the projects to be constructed for the amounts made available under subsection (a) of section 7, and improve the cost-effectiveness of the projects. (e) Nonreimbursability of costs All costs incurred by the Secretary in carrying out this section shall be nonreimbursable. (f) Funding (1) Federal obligation The total amount of obligations incurred by the Secretary for planning, design, and construction of the Navajo water development projects in subsections (a) through (j) of this section shall not exceed $198,300,000, except that the total amount of $198,300,000 shall be increased or decreased, as appropriate, based on ordinary fluctuations from June 2014, in construction cost indices applicable to the types of construction involved in the design and construction of the Navajo water development projects. (2) State cost share The State shall contribute $8,000,000 payable to the Secretary for planning, design, and construction of the Navajo water development projects in installments in each of the 3 years following the execution of the agreement by the Secretary as provided for in subsection (b) of section 5. (3) Transfers to Navajo OM&R account Monies made available for the Navajo water development projects but not used for that purpose may, at the discretion of the Navajo Nation, be transferred to the Navajo OM&R Trust Account established by subsection (k). (g) Applicability of the Indian Self-Determination Act (1) In general At the request of the Navajo Nation, and in accordance with the Indian Self-Determination and Education Assistance Act ( 25 U.S.C. 5301 et seq. ), the Secretary shall enter into one or more agreements with the Navajo Nation to carry out the activities authorized by this section. (2) Oversight costs Reclamation, or any Federal agency with an intergovernmental agreement with the Secretary pursuant to subsection (a), and the Navajo Nation shall negotiate the cost of any oversight activities carried out by such agencies for each agreement under this section, provided that the total cost for that oversight shall not exceed 4 percent of the total project costs. (h) Conveyance of title to Navajo water development projects The Secretary shall convey title to those Navajo water development projects described as water supply and water distribution systems in the agreement and authorized in this section to the Navajo Nation when construction of each project is complete and the project is operating and, if applicable, delivering potable water. (1) Limitation of liability Effective on the date of the conveyance authorized by this subsection, the United States shall not be held liable by any court for damages arising out of any act, omission, or occurrence relating to the facilities conveyed under this subsection, other than damages caused by any intentional act or act of negligence committed by the United States, or by employees or agents of the United States, prior to the date of conveyance. (2) OM&R obligation of the United States after conveyance The United States shall have no obligation to pay for the operation, maintenance, or replacement costs of any Navajo water development project beginning on the date on which— (A) title to the project is conveyed to the Navajo Nation; and (B) the amounts required to be deposited in the Navajo OM&R Trust Account pursuant to subsection (b) of section 7 have been deposited in that account. (i) Technical assistance The Secretary shall provide technical assistance to prepare the Navajo Nation for operation of the Navajo water development projects, including operation and management training. (j) Project management committee (1) In General The Secretary shall facilitate the formation of a project management committee to be composed of representatives of— (A) the Navajo Nation; (B) Reclamation, or any Federal agency with an intergovernmental agreement with the Secretary pursuant to subsection (a), the Bureau of Indian Affairs, and the Indian Health Service, as appropriate; and (C) the State. (2) Duties The project management committee shall— (A) review cost factors and budgets for construction, operation, and maintenance activities for the Navajo water development projects; (B) improve management of the planning, design, construction, and operation of the Navajo water development projects through enhanced communication; and (C) seek additional ways to reduce overall costs for the Navajo water development projects. (k) Navajo OM&R trust account The United States shall establish a trust account in the Treasury of the United States for the operation, maintenance, and replacement of the Navajo water development projects authorized to be constructed in this section and described in the agreement as water supply systems and water distribution systems. 7. Authorization of appropriations (a) Navajo Water Development Fund (1) In general There is authorized to be appropriated to the Secretary $198,300,000 to plan, design, and construct the Navajo water development projects to remain available until expended. (2) Adjustments The amount under paragraph (1) shall be adjusted by such amounts— (A) as are contributed by the State pursuant to subsection (f)(2) of section 6; and (B) as may be required by reason of changes since June 2014 in construction costs, as indicated by engineering cost indices applicable to the types of construction involved. (3) Use In addition to the uses authorized under paragraph (1), amounts made available under that paragraph may be used for the conduct of related activities, to comply with Federal environmental laws, or may be transferred to the Navajo OM&R Trust Account as provided in subsection (f)(3) of section 6. (b) Navajo OM&R trust account (1) Authorization of appropriations For the purpose of assisting the Navajo Nation with the expenses of operating, maintaining, and replacing the Navajo water development projects authorized to be constructed in section 6 and described as water supply systems and water distribution systems in the agreement, there is authorized to be appropriated $11,100,000 to be deposited in the Navajo OM&R trust account established pursuant to subsection (k) of section 6, which funds shall be retained until expended. (2) Management of account The Secretary shall manage the account in accordance with the American Indian Trust Fund Management Reform Act of 1994 ( 25 U.S.C. 4001 et seq. ), and shall invest amounts deposited in the account in accordance with that Act and— (A) the Act of April 1, 1880 ( 25 U.S.C. 161 ); and (B) the first section of the Act of June 24, 1938 ( 25 U.S.C. 162a ). (3) Fluctuation in costs The amount authorized to be appropriated in paragraph (1) shall be increased or decreased, as appropriate, by such amounts as may be justified by reason of ordinary fluctuations in costs occurring after June 2014 as indicated by applicable engineering cost indices. (4) Availability of monies Monies appropriated to and deposited in the Navajo OM&R Trust Account, and investment earnings thereon, shall be made available by the Secretary to the Navajo Nation beginning on the date on which title to and OM&R responsibility for the Navajo water development projects is transferred to the Navajo Nation pursuant to subsection (h) of section 6 until such monies are exhausted. (c) Programmatic costs There is authorized to be appropriated $1,000,000 to assist the Nation with programmatic costs associated with the settlement, including the preparation of a hydrographic survey of historic and existing water uses on the Reservation. (d) Offset To the extent necessary, the Secretary shall offset any direct spending authorized and any interest earned on amounts expended pursuant to this section using such additional amounts as may be made available to the Secretary for the applicable fiscal year. 8. Reserved water rights (a) Quantification The Navajo Nation shall have the right to use water from water sources located within Utah and adjacent to or encompassed within the boundaries of the Reservation resulting in depletions not to exceed 81,500 acre-feet annually as described in the agreement. (b) Rights of members and allottees Any entitlement to water of any member or any allottee for lands within the Reservation or for any allotment shall be satisfied out of the Navajo Nation water rights recognized in the agreement and this Act. (c) Held in trust The water rights of the Navajo Nation and the allottees, all as described in the agreement and as adjudicated in the decree, shall be held in trust by the United States on behalf of the Navajo Nation and allottees, respectively. (d) Forfeiture and abandonment The water rights of the Navajo Nation and the allottees, all as described in the agreement and adjudicated in the decree, shall not be subject to loss by non-use, forfeiture, abandonment, or other operation of law. 9. Conditions precedent (a) In general The waivers and release contained in section 10 of this Act shall become effective as of the date the Secretary causes to be published in the Federal Register a statement of findings that— (1) to the extent that the agreement conflicts with the Act, the agreement has been revised to conform with this Act; (2) the agreement, so revised, including waivers and releases of claims set forth in section 10, has been executed by the parties, including the United States; (3) Congress has fully appropriated, or the Secretary has provided from other authorized sources, all funds authorized by subsections (a) and (b) of section 7; (4) the State has enacted any necessary legislation and provided the funding required under the agreement and subsection (f)(2) of section 6 of this Act; and (5) the court has entered a final or interlocutory decree that— (A) confirms the water rights of the Navajo Nation; (B) with respect to the water rights of the Navajo Nation, is final as to all parties to the general stream adjudication and from which no further appeals may be taken; and (C) the Secretary, in consultation with the parties, has determined is consistent in all material respects with the agreement and with the proposed judgment and decree agreed to by the parties to the agreement. (b) Expiration date If all the conditions precedent described in subsection (a) have not been fulfilled to allow the Secretary’s statement of findings to be published in the Federal Register by October 31, 2026— (1) the agreement and this Act, including waivers and releases of claims described in those documents, shall no longer be effective; (2) any funds that have been appropriated pursuant to section 7 of this Act but not expended shall immediately revert to the general fund of the United States; and (3) any funds contributed by the State pursuant to subsection (f)(2) of section 6 of this Act but not expended shall be returned immediately to the State. (c) Extension The expiration date set forth in subsection (b) may be extended if the Navajo Nation, the State, and the United States (acting through the Secretary) agree that an extension is reasonably necessary. 10. Waivers and releases (a) Claims by the Navajo Nation and the United States In return for confirmation of the Navajo Nation’s federally reserved water rights, the water rights or rights to use water of allottees in Utah, and other benefits set forth in the agreement and this Act, and in return for a waiver of claims by the State against the Nation and the United States acting in its trust capacity, the Nation and the United States acting in its trust capacity hereby waive and release— (1) all claims for water rights within Utah based on any and all legal theories that the Navajo Nation, allottees, or the United States acting in its trust capacity, asserted, or could have asserted, at any time in any proceeding, including to the general stream adjudication, up to and including the enforceability date, except to the extent that such rights are recognized in the agreement and this Act; and (2) all claims for damages, losses, or injuries to water rights or claims of interference with, diversion, or taking of water rights (including claims for injury to lands resulting from such damages, losses, injuries, interference with, diversion, or taking of water rights) within Utah against the State, or any person, entity, corporation, or municipality, that accrued at any time up to and including the enforceability date. (b) Claims by the Navajo Nation against the United States The Navajo Nation, on behalf of itself and its members (other than members in their individual capacity, including their capacity as allottees), shall execute a waiver and release of— (1) all claims the Navajo Nation may have against the United States relating in any manner to claims for water rights in or water of Utah that the United States acting in its trust capacity asserted, or could have asserted, in any proceeding, including the general stream adjudication; (2) all claims the Navajo Nation may have against the United States relating in any manner to damages, losses, or injuries to water, water rights, land, or other 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, or taking of water; or claims relating to failure to protect, acquire, replace, or develop water or water rights) within Utah that first accrued at any time up to and including the enforceability date; (3) all claims the Nation may have against the United States relating in any manner to the litigation of claims relating to the Nation’s water rights in proceedings in Utah; and (4) all claims the Nation may have against the United States relating in any manner to the negotiation, execution, or the adoption of the agreement or this Act. (c) Claims by the State against the Navajo Nation and the United States Except as provided in subsection (e), the State waives and releases any claims that the State may have against the Navajo Nation, allottees, and the United States acting in its trust capacity, under Federal, State, or other law for— (1) all claims for injury to water rights resulting from the diversion or use of water on or for— (A) the Reservation; (B) Navajo trust land in Utah; (C) Navajo fee land in Utah; or (D) allotments, arising from time immemorial through the enforceability date; (2) all claims for injury to water rights arising after the enforceability date resulting from the diversion or use of water on or for— (A) the Navajo reservation; (B) Navajo trust land in Utah; (C) Navajo fee land in Utah; or (D) allotments, in a manner not in violation of the agreement or applicable law; and (3) all claims arising out of or related in any manner to the negotiation or execution of the agreement, or the negotiation or enactment of this Act. (d) Reservation of rights and retention of claims by the Navajo Nation and the United States Notwithstanding the waivers and releases authorized in this Act, the Navajo Nation, and the United States acting in its trust capacity, retain— (1) all claims for injuries to and the enforcement of the agreement and the final or interlocutory decree entered in the general stream adjudication, through such legal and equitable remedies as may be available in the decree court or the Federal District Court for the District of Utah; (2) all rights to use and protect water rights acquired after the enforceability date; (3) all claims relating to activities affecting the quality of water, including any claims under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9601 et seq. (including claims for damages to natural resources)), the Safe Drinking Water Act ( 42 U.S.C. 300f et seq. ), and the Federal Water Pollution Control Act ( 33 U.S.C. 1251 et seq. ), the regulations implementing those Acts, and the common law; (4) all claims for water rights, and claims for injury to water rights, in States other than the State of Utah; (5) all claims, including environmental claims, under any laws (including regulations and the common law) relating to human health, safety, or the environment; and (6) all rights, remedies, privileges, immunities, and powers not specifically waived and released pursuant to the agreement and this Act. (e) Reservation of rights and retention of claims by the State Notwithstanding the waivers of claims and releases described in this section, the State shall retain any right to— (1) assert claims for the enforcement of the agreement and the final or interlocutory decree entered in the general stream adjudication, through such legal and equitable remedies as may be available in the State decree court or the Federal District Court for the District of Utah; (2) assert claims for injury to, and seek enforcement of, the State’s rights under the judgment and decree entered by the court in the general stream adjudication; (3) assert past, present, and future claims to water that are subject to the general stream adjudication or other applicable law, and that are not inconsistent with the agreement; (4) assert any claims for injury to water rights not specifically waived herein; and (5) take any action including environmental actions, under any laws (including regulations and the common law) relating to human health, safety, or the environment. (f) Effect of section Nothing in the agreement or this Act— (1) affects the ability of the United States acting in its sovereign capacity to take actions authorized by law, including any laws relating to health, safety, or the environment, including the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9601 et seq. ), 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. ), the Solid Waste Disposal Act ( 42 U.S.C. 6901 et seq. ), and the regulations implementing those laws; (2) affects the ability of the United States to take actions 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; and (B) conduct judicial review of Federal agency action; or (4) modifies, conflicts with, preempts, or otherwise affects— (A) the Boulder Canyon Project Act ( 43 U.S.C. 617 et seq. ); (B) the Boulder Canyon Project Adjustment Act (54 Stat. 774, chapter 643); (C) the Act of April 11, 1956 (commonly known as the Colorado River Storage Project Act ) ( 43 U.S.C. 620 et seq. ); (D) the Act of September 30, 1968 (commonly known as the Colorado River Basin Project Act ) (82 Stat. 885); (E) the Treaty between the United States of America and Mexico respecting utilization of waters of the Colorado and Tijuana Rivers and of the Rio Grande, signed at Washington February 3, 1944 (59 Stat. 1219); (F) the Colorado River Compact of 1922, as approved by the Presidential Proclamation of June 25, 1929 (46 Stat. 3000); and (G) the Upper Colorado River Basin Compact as consented to by the Act of April 6, 1949 (63 Stat. 31, chapter 48). (g) 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 limitations or any time-based equitable defense under any other applicable law. 11. Miscellaneous provisions (a) Precedent Nothing in this Act establishes any standard for the quantification or litigation of Federal reserved water rights or any other Indian water claims of any other Indian tribes in any other judicial or administrative proceeding. (b) Other Indian tribes Nothing in the agreement or this Act shall be construed in any way to quantify or otherwise adversely affect the water rights, claims, or entitlements to water of any Indian tribe, band, or community, other than the Navajo Nation.