Ohkay Owingeh Rio Chama Water Rights Settlement Act of 2024

Bill: 118-s-4505
Sponsor: full_name: Sen. Heinrich, Martin [D-NM]
Introduced: 2024-06-11
Policy area: Native Americans
Subjects: Federal-Indian relations

Government trust funds

Indian claims

Indian lands and resources rights

Land transfers

Land use and conservation

New Mexico

State and local finance

Water quality

Water use and supply

Watersheds

Wildlife conservation and habitat protection
Latest action: action_date: 2024-12-04
text: Placed on Senate Legislative Calendar under General Orders. Calendar No. 663.

Summaries:

tv_txt: II Calendar No. 663 118th CONGRESS 2d Session S. 4505 [Report No. 118–261] IN THE SENATE OF THE UNITED STATES June 11, 2024 Mr. Heinrich (for himself and Mr. Luján ) introduced the following bill; which was read twice and referred to the Committee on Indian Affairs December 4, 2024 Reported by Mr. Schatz , without amendment A BILL To approve the settlement of water rights claims of Ohkay Owingeh in the Rio Chama Stream System, to restore the Bosque on Pueblo Land 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 Ohkay Owingeh Rio Chama Water Rights Settlement Act of 2024 . (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 Rights. Sec. 6. Settlement Trust Fund. Sec. 7. Funding. Sec. 8. Enforceability Date. Sec. 9. Waivers and releases of claims. Sec. 10. Satisfaction of claims. 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 Rio Chama Stream System in the State for— (A) Ohkay Owingeh; and (B) the United States, acting as trustee for Ohkay Owingeh; (2) to authorize, ratify, and confirm the Agreement entered into by Ohkay Owingeh, 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 means the general stream adjudication of water rights in the Rio Chama Stream System entitled State of New Mexico ex rel. State Engineer v. Aragon , Civil No. 69–CV–07941–KWR/KK, pending, as of the date of enactment of this Act, in the United States District Court for the District of New Mexico. (2) Agreement The term Agreement means— (A) the document entitled Ohkay Owingeh Rio Chama Water Rights Settlement and dated July 5, 2023, and the exhibits attached thereto; and (B) any amendment to the document referred to in subparagraph (A) (including an amendment to an exhibit thereto) that is executed to ensure that the Agreement is consistent with this Act. (3) Bosque The term bosque means a gallery forest located along the riparian floodplain of a stream, riverbank, or lake. (4) City of Española The term City of Española means a municipal corporation of the State. (5) Enforceability Date The term Enforceability Date means the date described in section 8 . (6) Ohkay Owingeh; Pueblo The terms Ohkay Owingeh and Pueblo mean the body politic and federally recognized Indian nation. (7) Partial Final Judgment and Decree The term Partial Final Judgment and Decree means a final or interlocutory partial final judgment and decree entered by the United States District Court for the District of New Mexico with respect to the water rights of Ohkay Owingeh in the Rio Chama Stream System— (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. (8) Pueblo Grant The term Pueblo Grant means the land recognized and confirmed by the Federal patent issued to Ohkay Owingeh (then known as the Pueblo of San Juan ) under the Act of December 22, 1858 (11 Stat. 374, chapter V). (9) Pueblo Land The term Pueblo Land means any real property that is— (A) held by the United States in trust for Ohkay Owingeh within the Rio Chama Stream System; (B) owned by the Pueblo within the Rio Chama Stream System before the Enforceability Date; or (C) acquired by the Pueblo within the Rio Chama Stream System on or after the Enforceability Date if the real property is located— (i) within the exterior boundaries of the Pueblo Grant; or (ii) within the exterior boundaries of any territory set aside for the Pueblo by law, Executive order, or court decree. (10) Pueblo Water Rights The term Pueblo Water Rights means the water rights of Ohkay Owingeh in the Rio Chama Stream System— (A) as identified in the Agreement and section 5 ; and (B) as confirmed in the Partial Final Judgment and Decree. (11) Rio Chama Stream System The term Rio Chama Stream System means the Rio Chama surface water drainage basin within the State, as illustrated in Exhibit A to the Agreement. (12) Secretary The term Secretary means the Secretary of the Interior. (13) Signatory Acequia The term Signatory Acequia means an acequia that is a signatory to the Agreement. (14) State The term State means the State of New Mexico. (15) Trust Fund The term Trust Fund means the Ohkay Owingeh Water Rights Settlement Trust Fund established under section 6(a). 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 exhibit 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 exhibits thereto 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 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 ) or any other applicable provision of Federal law. (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. ), including the implementing regulations of that Act; and (C) all other applicable Federal environmental laws and regulations. (2) Compliance and coordination (A) In general In implementing the Agreement and this Act, the Pueblo 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. ), including the implementing regulations of that Act; and (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. (C) Coordination with Army Corps of Engineers For any bosque restoration or improvement project carried out by the Pueblo with funds appropriated under this Act, the Pueblo shall coordinate with the Corps of Engineers to ensure that work on the project shall not interfere with or adversely affect any authorized Federal project that is under the jurisdiction and authority of the Corps of Engineers. (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 and coordination activities under this subsection shall be paid from funds deposited in the Trust Fund, subject to the condition that any costs associated with the performance of Federal approval or other review of that compliance work or costs associated with inherently Federal functions shall remain the responsibility of the Secretary, with the exception that costs for review of bosque restoration or improvement projects by the Corps of Engineers described in paragraph (2)(C) shall be paid from funds deposited in the Trust Fund. 5. Pueblo Water Rights (a) Trust status of the Pueblo Water Rights The Pueblo Water Rights shall be held in trust by the United States on behalf of Ohkay Owingeh in accordance with the Agreement and this Act. (b) Forfeiture and abandonment (1) In general The Pueblo Water Rights shall not be subject to loss through non-use, forfeiture, abandonment, or other operation of law. (2) State law-based water rights State-law based water rights acquired by Ohkay Owingeh, or by the United States on behalf of Ohkay Owingeh, after the date for inclusion in the Partial Final Judgment and Decree, shall not be subject to forfeiture, abandonment, or permanent alienation from the time they are acquired. (c) Use Any use of the Pueblo Water Rights shall be subject to the terms and conditions of the Agreement and this Act. (d) Authority of the Pueblo (1) In general Ohkay Owingeh may allocate, distribute, and lease the Pueblo Water Rights for use on Pueblo Land in accordance with the Agreement, this Act, and applicable Federal law, including the Act of August 9, 1955 ( 25 U.S.C. 415 et seq. ) (commonly known as the Long-Term Leasing Act ). (2) Use off Pueblo Land (A) In general Ohkay Owingeh may allocate, distribute, and lease the Pueblo Water Rights for use off Pueblo Land in accordance with the Agreement, this Act, and applicable Federal law, subject to the approval of the Secretary. (B) Maximum term of leases The maximum term of any lease, including all renewals, under this paragraph shall not exceed 99 years. (e) Administration (1) No alienation The Pueblo shall not permanently alienate any portion of the Pueblo Water Rights. (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 Rights by any water user shall not result in the forfeiture, abandonment, relinquishment, or other loss of all or any portion of the Pueblo Water Rights. 6. Settlement Trust Fund (a) Establishment The Secretary shall establish a trust fund, to be known as the Ohkay Owingeh Water Rights Settlement Trust Fund , to be managed, invested, and distributed by the Secretary and to remain available until expended, withdrawn, or reverted to the general fund of the Treasury, consisting of the amounts deposited in the Trust Fund under subsection (b), together with any investment earnings, including interest, earned on those amounts for the purpose of carrying out this Act. (b) Deposits The Secretary shall deposit in the 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 Trust Fund under subsection (b), the Secretary shall manage, invest, and distribute all amounts in the Trust Fund 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. ); and (C) this subsection. (2) Investment earnings In addition to the amounts deposited into the Trust Fund under subsection (b), any investment earnings, including interest, earned on those amounts held in the 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, the Trust Fund, including any investment earnings (including interest) earned on those amounts, shall be made available to Ohkay Owingeh by the Secretary beginning on the Enforceability Date, subject to the requirements of this section, except for funds to be made available to Ohkay Owingeh pursuant to paragraph (2). (2) Use of funds Notwithstanding paragraph (1), not more than $100,000,000 of the amounts deposited in the Trust Fund, including any investment earnings, including interest, earned on those amounts, shall be available to Ohkay Owingeh for the following uses on the date on which the amounts are deposited in the Trust Fund: (A) Diversions of surface water and groundwater to the Rio Chama bosque for immediate and essential restoration and maintenance of the bosque. (B) Fulfillment of the contribution of the Pueblo under the Agreement for improvements to senior acequias on Pueblo Land supplying water to the Pueblo and non-Indians. (C) Establishment and operation of the water rights management administrative department of the Pueblo. (D) Acquisition of water rights. (E) Development of water infrastructure plans, preparing environmental compliance documents, and water project engineering and construction. (e) Withdrawals (1) Withdrawals under the American Indian Trust Fund Management Reform Act of 1994 (A) In general The Pueblo may withdraw any portion of the amounts in the 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. ), the Tribal management plan under subparagraph (A) shall require that the Pueblo shall spend all amounts withdrawn from the Trust Fund, and any investment earnings (including interest) earned on those amounts through the investments under the Tribal management plan, in accordance with this Act. (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 subparagraph (A) to ensure that amounts withdrawn by the Pueblo from the Trust Fund under that subparagraph are used in accordance with this Act. (2) Withdrawals under expenditure plan (A) In general Ohkay Owingeh may submit to the Secretary a request to withdraw funds from the Trust Fund pursuant to an approved expenditure plan. (B) Requirements To be eligible to withdraw amounts under an expenditure plan under subparagraph (A), the Pueblo shall submit to the Secretary an expenditure plan for any portion of the Trust Fund 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 subparagraph (A) shall include a description of the manner and purpose for which the amounts proposed to be withdrawn from the Trust Fund will be used by Ohkay Owingeh, 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 Ohkay Owingeh 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 The Trust Fund may only be used 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 supply or wastewater infrastructure. (2) Planning, permitting, designing, engineering, constructing, reconstructing, replacing, rehabilitating, operating, or repairing water production, treatment, or delivery infrastructure, acquisition of water, or on-farm improvements for irrigation, livestock, and support of agriculture. (3) Planning, permitting, designing, engineering, constructing, reconstructing, replacing, rehabilitating, operating, monitoring or other measures for watershed and endangered species habitat protection, bosque restoration or improvement (including any required cost shares for and allowable contributions to a Federal project or program), land and water rights acquisition, water-related Pueblo community welfare and economic development, and costs relating to implementation of the Agreement. (4) The management and administration of any water rights of the Pueblo. (5) 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 the Trust Fund by the Pueblo under paragraph (1) or (2) of subsection (e). (i) Expenditure reports Ohkay Owingeh 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 the Trust Fund shall be distributed on a per capita basis to any member of Ohkay Owingeh. (k) Title to infrastructure Title to, control over, and operation of any project constructed using funds from the Trust Fund shall remain in Ohkay Owingeh, except that title to projects that are improved with funds from the Trust Fund for the mutual benefit of the Pueblo and non-Indians, on property owned by non-Indians, shall remain with the underlying non-Indian owner. (l) Operation, maintenance, and replacement All operation, maintenance, and replacement costs of any project constructed using funds from the Trust Fund shall be the responsibility of Ohkay Owingeh. 7. Funding (a) Mandatory appropriations Out of any funds in the Treasury not otherwise appropriated, the Secretary of the Treasury shall transfer to the Secretary for deposit in the Trust Fund $745,000,000, 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 June 1, 2023, and end on the date on which the funds are deposited in the Trust Fund. (c) State cost share Pursuant to the Agreement, the State shall contribute— (1) $98,500,000, as adjusted for inflation pursuant to the Agreement, for Signatory Acequias ditch improvements, projects, and other purposes described in the Agreement; (2) $32,000,000, as adjusted for inflation pursuant to the Agreement, for the City of Española for water system improvement projects; and (3) $500,000, to be deposited in an interest-bearing account, to mitigate impairment to non-Pueblo domestic and livestock groundwater rights as a result of new Pueblo water use. 8. 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, 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 the amounts appropriated under section 7(a) have been appropriated and deposited in the Trust Fund; (5) the State has— (A) provided the funding under section 7(c)(1) or entered into a funding agreement with the intended beneficiary for that funding; (B) provided the funding under section 7(c)(2) or entered into a funding agreement with the intended beneficiary for that funding; (C) provided the funding under section 7(c)(3) and deposited that amount into the appropriate funding account; and (D) enacted legislation to amend State law to provide that the Pueblo Water Rights may be leased for a term not to exceed 99 years, including renewals; and (6) the waivers and releases under section 9 have been executed by Ohkay Owingeh and the Secretary. 9. Waivers and releases of claims (a) Waivers and releases of claims by Ohkay Owingeh and United States as trustee for Ohkay Owingeh Subject to the reservation of rights and retention of claims under subsection (d), as consideration for recognition of the Pueblo Water Rights and other benefits described in the Agreement and this Act, Ohkay Owingeh and the United States, acting as trustee for Ohkay Owingeh, shall execute a waiver and release of all claims for— (1) water rights within the Rio Chama Stream System that Ohkay Owingeh, or the United States acting as trustee for Ohkay Owingeh, asserted or could have asserted in any proceeding, including the Adjudication, on or before the Enforceability Date, except to the extent that such rights are recognized in the Agreement and this Act; and (2) damages, losses, or injuries to water rights or claims of interference with, diversion of, or taking of water rights (including claims for injury to land resulting from such damages, losses, injuries, interference, diversion, or taking of water rights) in the Rio Chama Stream System that accrued at any time up to and including the Enforceability Date. (b) Waivers and releases of claims by Ohkay Owingeh against the United States Subject to the reservation of rights and retention of claims under subsection (d), Ohkay Owingeh 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 Rio Chama Stream System first arising before the Enforceability Date relating to— (1) water rights within the Rio Chama Stream System that the United States, acting as trustee for Ohkay Owingeh, 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 Rights under this Act; (2) foregone benefits from non-Pueblo use of water, on and off Pueblo Land (including water from all sources and for all uses), within the Rio Chama Stream System; (3) 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 Rio Chama Stream System; (4) failure to establish or provide a municipal, rural, or industrial water delivery system on Pueblo Land within the Rio Chama Stream System; (5) 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 and facilities (including damages, losses, or injuries to fish habitat, wildlife, and wildlife habitat) within the Rio Chama Stream System; (6) failure to provide for operation, maintenance, or deferred maintenance for any irrigation system or irrigation project within the Rio Chama Stream System; (7) failure to provide a dam safety improvement to a dam on Pueblo Land within the Rio Chama Stream System; (8) damage, loss, or injury to the bosque area of the Rio Chama due to the construction, operation, and maintenance of Abiquiu Dam and its associated infrastructure and resulting Rio Chama flow management; (9) the litigation of claims relating to any water right of Ohkay Owingeh within the Rio Chama Stream System; (10) the taking of the bosque property of the Pueblo within the Pueblo Grant on the Rio Chama and Rio Grande as asserted in Ohkay Owingeh v. United States, No. 22–1607L (Court of Federal Claims); (11) failure of the United States to acknowledge and protect aboriginal rights to water in the Rio Chama Stream System; (12) the failure of the United States to develop the irrigation water resources in the Rio Chama Stream System on the Pueblo Grant, including failure to— (A) construct and deliver water through the Highline Canal; (B) make improvements to the Chamita Ditch; and (C) repurchase arable land unlawfully obtained by non-Indians; (13) the failure of the United States to prevent or remedy non-Indians’ trespass on or seizure of arable Pueblo lands in the Rio Chama Stream System on the Pueblo Grant; and (14) the negotiation, execution, or adoption of the Agreement (including exhibits) and this Act. (c) Effective date The waivers and releases described in subsections (a) and (b) shall take effect on the Enforceability Date. (d) Reservation of rights and retention of claims Notwithstanding the waivers and releases under subsections (a) and (b), the Pueblo and the United States, acting as trustee for Ohkay Owingeh, 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, this Act, or the Partial Final Judgment and Decree entered in the Adjudication; (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. ), including claims for damages to natural resources; (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. ); and (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 Rio Chama Stream System. (e) 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. ); (D) the Solid Waste Disposal Act ( 42 U.S.C. 6901 et seq. ); and (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 Pueblo (consistent with this Act), any other pueblo or Indian Tribe, or an allottee of any other pueblo or 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 relating to health, safety, or the environment; (C) to conduct judicial review of any Federal agency action; or (D) to interpret Pueblo law; or (5) waives any claim of a member of Ohkay Owingeh in an individual capacity that does not derive from a right of the Pueblo. (f) 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. (g) Expiration (1) In general This Act shall expire in any case in which the Secretary fails to publish a statement of findings under section 8 by not later than— (A) July 1, 2038; or (B) such alternative later date as is agreed to by Ohkay Owingeh 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 subsections (a) and (b) 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 Ohkay Owingeh 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) Ohkay Owingeh; or (bb) any user of the Pueblo Water Rights; or (II) any other matter covered by subsection (b); or (ii) in any future settlement of water rights of Ohkay Owingeh. 10. 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 Ohkay Owingeh against the United States that is waived and released by Ohkay Owingeh pursuant to section 9(b). 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, pueblo, or community other than Ohkay Owingeh. (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. (e) Hold harmless For any bosque restoration or improvement project carried out by the Pueblo with funds appropriated under this Act, the Pueblo shall hold and save the United States free from damages due to the construction or operation and maintenance of the project. 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.

December 4, 2024 Reported without amendment

tv_txt: II 118th CONGRESS 2d Session S. 4505 IN THE SENATE OF THE UNITED STATES June 11, 2024 Mr. Heinrich (for himself and Mr. Luján ) introduced the following bill; which was read twice and referred to the Committee on Indian Affairs A BILL To approve the settlement of water rights claims of Ohkay Owingeh in the Rio Chama Stream System, to restore the Bosque on Pueblo Land 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 Ohkay Owingeh Rio Chama Water Rights Settlement Act of 2024 . (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 Rights. Sec. 6. Settlement Trust Fund. Sec. 7. Funding. Sec. 8. Enforceability Date. Sec. 9. Waivers and releases of claims. Sec. 10. Satisfaction of claims. 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 Rio Chama Stream System in the State for— (A) Ohkay Owingeh; and (B) the United States, acting as trustee for Ohkay Owingeh; (2) to authorize, ratify, and confirm the Agreement entered into by Ohkay Owingeh, 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 means the general stream adjudication of water rights in the Rio Chama Stream System entitled State of New Mexico ex rel. State Engineer v. Aragon , Civil No. 69–CV–07941–KWR/KK, pending, as of the date of enactment of this Act, in the United States District Court for the District of New Mexico. (2) Agreement The term Agreement means— (A) the document entitled Ohkay Owingeh Rio Chama Water Rights Settlement and dated July 5, 2023, and the exhibits attached thereto; and (B) any amendment to the document referred to in subparagraph (A) (including an amendment to an exhibit thereto) that is executed to ensure that the Agreement is consistent with this Act. (3) Bosque The term bosque means a gallery forest located along the riparian floodplain of a stream, riverbank, or lake. (4) City of Española The term City of Española means a municipal corporation of the State. (5) Enforceability Date The term Enforceability Date means the date described in section 8 . (6) Ohkay Owingeh; Pueblo The terms Ohkay Owingeh and Pueblo mean the body politic and federally recognized Indian nation. (7) Partial Final Judgment and Decree The term Partial Final Judgment and Decree means a final or interlocutory partial final judgment and decree entered by the United States District Court for the District of New Mexico with respect to the water rights of Ohkay Owingeh in the Rio Chama Stream System— (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. (8) Pueblo Grant The term Pueblo Grant means the land recognized and confirmed by the Federal patent issued to Ohkay Owingeh (then known as the Pueblo of San Juan ) under the Act of December 22, 1858 (11 Stat. 374, chapter V). (9) Pueblo Land The term Pueblo Land means any real property that is— (A) held by the United States in trust for Ohkay Owingeh within the Rio Chama Stream System; (B) owned by the Pueblo within the Rio Chama Stream System before the Enforceability Date; or (C) acquired by the Pueblo within the Rio Chama Stream System on or after the Enforceability Date if the real property is located— (i) within the exterior boundaries of the Pueblo Grant; or (ii) within the exterior boundaries of any territory set aside for the Pueblo by law, Executive order, or court decree. (10) Pueblo Water Rights The term Pueblo Water Rights means the water rights of Ohkay Owingeh in the Rio Chama Stream System— (A) as identified in the Agreement and section 5 ; and (B) as confirmed in the Partial Final Judgment and Decree. (11) Rio Chama Stream System The term Rio Chama Stream System means the Rio Chama surface water drainage basin within the State, as illustrated in Exhibit A to the Agreement. (12) Secretary The term Secretary means the Secretary of the Interior. (13) Signatory Acequia The term Signatory Acequia means an acequia that is a signatory to the Agreement. (14) State The term State means the State of New Mexico. (15) Trust Fund The term Trust Fund means the Ohkay Owingeh Water Rights Settlement Trust Fund established under section 6(a). 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 exhibit 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 exhibits thereto 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 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 ) or any other applicable provision of Federal law. (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. ), including the implementing regulations of that Act; and (C) all other applicable Federal environmental laws and regulations. (2) Compliance and coordination (A) In general In implementing the Agreement and this Act, the Pueblo 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. ), including the implementing regulations of that Act; and (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. (C) Coordination with Army Corps of Engineers For any bosque restoration or improvement project carried out by the Pueblo with funds appropriated under this Act, the Pueblo shall coordinate with the Corps of Engineers to ensure that work on the project shall not interfere with or adversely affect any authorized Federal project that is under the jurisdiction and authority of the Corps of Engineers. (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 and coordination activities under this subsection shall be paid from funds deposited in the Trust Fund, subject to the condition that any costs associated with the performance of Federal approval or other review of that compliance work or costs associated with inherently Federal functions shall remain the responsibility of the Secretary, with the exception that costs for review of bosque restoration or improvement projects by the Corps of Engineers described in paragraph (2)(C) shall be paid from funds deposited in the Trust Fund. 5. Pueblo Water Rights (a) Trust status of the Pueblo Water Rights The Pueblo Water Rights shall be held in trust by the United States on behalf of Ohkay Owingeh in accordance with the Agreement and this Act. (b) Forfeiture and abandonment (1) In general The Pueblo Water Rights shall not be subject to loss through non-use, forfeiture, abandonment, or other operation of law. (2) State law-based water rights State-law based water rights acquired by Ohkay Owingeh, or by the United States on behalf of Ohkay Owingeh, after the date for inclusion in the Partial Final Judgment and Decree, shall not be subject to forfeiture, abandonment, or permanent alienation from the time they are acquired. (c) Use Any use of the Pueblo Water Rights shall be subject to the terms and conditions of the Agreement and this Act. (d) Authority of the Pueblo (1) In general Ohkay Owingeh may allocate, distribute, and lease the Pueblo Water Rights for use on Pueblo Land in accordance with the Agreement, this Act, and applicable Federal law, including the Act of August 9, 1955 ( 25 U.S.C. 415 et seq. ) (commonly known as the Long-Term Leasing Act ). (2) Use off Pueblo Land (A) In general Ohkay Owingeh may allocate, distribute, and lease the Pueblo Water Rights for use off Pueblo Land in accordance with the Agreement, this Act, and applicable Federal law, subject to the approval of the Secretary. (B) Maximum term of leases The maximum term of any lease, including all renewals, under this paragraph shall not exceed 99 years. (e) Administration (1) No alienation The Pueblo shall not permanently alienate any portion of the Pueblo Water Rights. (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 Rights by any water user shall not result in the forfeiture, abandonment, relinquishment, or other loss of all or any portion of the Pueblo Water Rights. 6. Settlement Trust Fund (a) Establishment The Secretary shall establish a trust fund, to be known as the Ohkay Owingeh Water Rights Settlement Trust Fund , to be managed, invested, and distributed by the Secretary and to remain available until expended, withdrawn, or reverted to the general fund of the Treasury, consisting of the amounts deposited in the Trust Fund under subsection (b), together with any investment earnings, including interest, earned on those amounts for the purpose of carrying out this Act. (b) Deposits The Secretary shall deposit in the 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 Trust Fund under subsection (b), the Secretary shall manage, invest, and distribute all amounts in the Trust Fund 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. ); and (C) this subsection. (2) Investment earnings In addition to the amounts deposited into the Trust Fund under subsection (b), any investment earnings, including interest, earned on those amounts held in the 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, the Trust Fund, including any investment earnings (including interest) earned on those amounts, shall be made available to Ohkay Owingeh by the Secretary beginning on the Enforceability Date, subject to the requirements of this section, except for funds to be made available to Ohkay Owingeh pursuant to paragraph (2). (2) Use of funds Notwithstanding paragraph (1), not more than $100,000,000 of the amounts deposited in the Trust Fund, including any investment earnings, including interest, earned on those amounts, shall be available to Ohkay Owingeh for the following uses on the date on which the amounts are deposited in the Trust Fund: (A) Diversions of surface water and groundwater to the Rio Chama bosque for immediate and essential restoration and maintenance of the bosque. (B) Fulfillment of the contribution of the Pueblo under the Agreement for improvements to senior acequias on Pueblo Land supplying water to the Pueblo and non-Indians. (C) Establishment and operation of the water rights management administrative department of the Pueblo. (D) Acquisition of water rights. (E) Development of water infrastructure plans, preparing environmental compliance documents, and water project engineering and construction. (e) Withdrawals (1) Withdrawals under the American Indian Trust Fund Management Reform Act of 1994 (A) In general The Pueblo may withdraw any portion of the amounts in the 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. ), the Tribal management plan under subparagraph (A) shall require that the Pueblo shall spend all amounts withdrawn from the Trust Fund, and any investment earnings (including interest) earned on those amounts through the investments under the Tribal management plan, in accordance with this Act. (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 subparagraph (A) to ensure that amounts withdrawn by the Pueblo from the Trust Fund under that subparagraph are used in accordance with this Act. (2) Withdrawals under expenditure plan (A) In general Ohkay Owingeh may submit to the Secretary a request to withdraw funds from the Trust Fund pursuant to an approved expenditure plan. (B) Requirements To be eligible to withdraw amounts under an expenditure plan under subparagraph (A), the Pueblo shall submit to the Secretary an expenditure plan for any portion of the Trust Fund 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 subparagraph (A) shall include a description of the manner and purpose for which the amounts proposed to be withdrawn from the Trust Fund will be used by Ohkay Owingeh, 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 Ohkay Owingeh 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 The Trust Fund may only be used 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 supply or wastewater infrastructure. (2) Planning, permitting, designing, engineering, constructing, reconstructing, replacing, rehabilitating, operating, or repairing water production, treatment, or delivery infrastructure, acquisition of water, or on-farm improvements for irrigation, livestock, and support of agriculture. (3) Planning, permitting, designing, engineering, constructing, reconstructing, replacing, rehabilitating, operating, monitoring or other measures for watershed and endangered species habitat protection, bosque restoration or improvement (including any required cost shares for and allowable contributions to a Federal project or program), land and water rights acquisition, water-related Pueblo community welfare and economic development, and costs relating to implementation of the Agreement. (4) The management and administration of any water rights of the Pueblo. (5) 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 the Trust Fund by the Pueblo under paragraph (1) or (2) of subsection (e). (i) Expenditure reports Ohkay Owingeh 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 the Trust Fund shall be distributed on a per capita basis to any member of Ohkay Owingeh. (k) Title to infrastructure Title to, control over, and operation of any project constructed using funds from the Trust Fund shall remain in Ohkay Owingeh, except that title to projects that are improved with funds from the Trust Fund for the mutual benefit of the Pueblo and non-Indians, on property owned by non-Indians, shall remain with the underlying non-Indian owner. (l) Operation, maintenance, and replacement All operation, maintenance, and replacement costs of any project constructed using funds from the Trust Fund shall be the responsibility of Ohkay Owingeh. 7. Funding (a) Mandatory appropriations Out of any funds in the Treasury not otherwise appropriated, the Secretary of the Treasury shall transfer to the Secretary for deposit in the Trust Fund $745,000,000, 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 June 1, 2023, and end on the date on which the funds are deposited in the Trust Fund. (c) State cost share Pursuant to the Agreement, the State shall contribute— (1) $98,500,000, as adjusted for inflation pursuant to the Agreement, for Signatory Acequias ditch improvements, projects, and other purposes described in the Agreement; (2) $32,000,000, as adjusted for inflation pursuant to the Agreement, for the City of Española for water system improvement projects; and (3) $500,000, to be deposited in an interest-bearing account, to mitigate impairment to non-Pueblo domestic and livestock groundwater rights as a result of new Pueblo water use. 8. 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, 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 the amounts appropriated under section 7(a) have been appropriated and deposited in the Trust Fund; (5) the State has— (A) provided the funding under section 7(c)(1) or entered into a funding agreement with the intended beneficiary for that funding; (B) provided the funding under section 7(c)(2) or entered into a funding agreement with the intended beneficiary for that funding; (C) provided the funding under section 7(c)(3) and deposited that amount into the appropriate funding account; and (D) enacted legislation to amend State law to provide that the Pueblo Water Rights may be leased for a term not to exceed 99 years, including renewals; and (6) the waivers and releases under section 9 have been executed by Ohkay Owingeh and the Secretary. 9. Waivers and releases of claims (a) Waivers and releases of claims by Ohkay Owingeh and United States as trustee for Ohkay Owingeh Subject to the reservation of rights and retention of claims under subsection (d), as consideration for recognition of the Pueblo Water Rights and other benefits described in the Agreement and this Act, Ohkay Owingeh and the United States, acting as trustee for Ohkay Owingeh, shall execute a waiver and release of all claims for— (1) water rights within the Rio Chama Stream System that Ohkay Owingeh, or the United States acting as trustee for Ohkay Owingeh, asserted or could have asserted in any proceeding, including the Adjudication, on or before the Enforceability Date, except to the extent that such rights are recognized in the Agreement and this Act; and (2) damages, losses, or injuries to water rights or claims of interference with, diversion of, or taking of water rights (including claims for injury to land resulting from such damages, losses, injuries, interference, diversion, or taking of water rights) in the Rio Chama Stream System that accrued at any time up to and including the Enforceability Date. (b) Waivers and releases of claims by Ohkay Owingeh against the United States Subject to the reservation of rights and retention of claims under subsection (d), Ohkay Owingeh 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 Rio Chama Stream System first arising before the Enforceability Date relating to— (1) water rights within the Rio Chama Stream System that the United States, acting as trustee for Ohkay Owingeh, 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 Rights under this Act; (2) foregone benefits from non-Pueblo use of water, on and off Pueblo Land (including water from all sources and for all uses), within the Rio Chama Stream System; (3) 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 Rio Chama Stream System; (4) failure to establish or provide a municipal, rural, or industrial water delivery system on Pueblo Land within the Rio Chama Stream System; (5) 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 and facilities (including damages, losses, or injuries to fish habitat, wildlife, and wildlife habitat) within the Rio Chama Stream System; (6) failure to provide for operation, maintenance, or deferred maintenance for any irrigation system or irrigation project within the Rio Chama Stream System; (7) failure to provide a dam safety improvement to a dam on Pueblo Land within the Rio Chama Stream System; (8) damage, loss, or injury to the bosque area of the Rio Chama due to the construction, operation, and maintenance of Abiquiu Dam and its associated infrastructure and resulting Rio Chama flow management; (9) the litigation of claims relating to any water right of Ohkay Owingeh within the Rio Chama Stream System; (10) the taking of the bosque property of the Pueblo within the Pueblo Grant on the Rio Chama and Rio Grande as asserted in Ohkay Owingeh v. United States, No. 22–1607L (Court of Federal Claims); (11) failure of the United States to acknowledge and protect aboriginal rights to water in the Rio Chama Stream System; (12) the failure of the United States to develop the irrigation water resources in the Rio Chama Stream System on the Pueblo Grant, including failure to— (A) construct and deliver water through the Highline Canal; (B) make improvements to the Chamita Ditch; and (C) repurchase arable land unlawfully obtained by non-Indians; (13) the failure of the United States to prevent or remedy non-Indians’ trespass on or seizure of arable Pueblo lands in the Rio Chama Stream System on the Pueblo Grant; and (14) the negotiation, execution, or adoption of the Agreement (including exhibits) and this Act. (c) Effective date The waivers and releases described in subsections (a) and (b) shall take effect on the Enforceability Date. (d) Reservation of rights and retention of claims Notwithstanding the waivers and releases under subsections (a) and (b), the Pueblo and the United States, acting as trustee for Ohkay Owingeh, 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, this Act, or the Partial Final Judgment and Decree entered in the Adjudication; (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. ), including claims for damages to natural resources; (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. ); and (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 Rio Chama Stream System. (e) 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. ); (D) the Solid Waste Disposal Act ( 42 U.S.C. 6901 et seq. ); and (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 Pueblo (consistent with this Act), any other pueblo or Indian Tribe, or an allottee of any other pueblo or 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 relating to health, safety, or the environment; (C) to conduct judicial review of any Federal agency action; or (D) to interpret Pueblo law; or (5) waives any claim of a member of Ohkay Owingeh in an individual capacity that does not derive from a right of the Pueblo. (f) 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. (g) Expiration (1) In general This Act shall expire in any case in which the Secretary fails to publish a statement of findings under section 8 by not later than— (A) July 1, 2038; or (B) such alternative later date as is agreed to by Ohkay Owingeh 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 subsections (a) and (b) 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 Ohkay Owingeh 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) Ohkay Owingeh; or (bb) any user of the Pueblo Water Rights; or (II) any other matter covered by subsection (b); or (ii) in any future settlement of water rights of Ohkay Owingeh. 10. 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 Ohkay Owingeh against the United States that is waived and released by Ohkay Owingeh pursuant to section 9(b). 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, pueblo, or community other than Ohkay Owingeh. (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. (e) Hold harmless For any bosque restoration or improvement project carried out by the Pueblo with funds appropriated under this Act, the Pueblo shall hold and save the United States free from damages due to the construction or operation and maintenance of the project. 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.