February 19, 2025
Mr. Luján (for himself, Mr. Curtis, and Mr. Heinrich) introduced the following bill; which was read twice and referred to the Committee on Indian Affairs
To amend the Northwestern New Mexico Rural Water Projects Act to make improvements to that Act, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
Section 1. Short title
This Act may be cited as the Navajo-Gallup Water Supply Project Amendments Act of 2025
.
Sec. 2. Definitions
Section 10302 of the Northwestern New Mexico Rural Water Projects Act (43 U.S.C. 407 note; Public Law 111–11) is amended—
(1)
by striking paragraph (29);
(2)
by redesignating paragraphs (12), (13), (14), (15), (16), (17), (18), (19), (20), (21), (22), (23), (24), (25), (26), (27), (28), and (30) as paragraphs (13), (14), (15), (16), (17), (18), (19), (20), (21), (22), (23), (24), (25), (27), (28), (30), (31), and (32), respectively;
(3)
by inserting after paragraph (11) the following:
(12) Deferred Construction Fund
The term Deferred Construction Fund means the Navajo Nation's Navajo-Gallup Water Supply Project Deferred Construction Fund established by section 10602(i)(1)(A).;
(4)
in paragraph (14) (as so redesignated)—
(A)
in the paragraph heading, by striking Draft
and inserting Final Environmental
;
(B)
by striking Draft Impact
and inserting Final Environmental
;
(C)
by striking draft environmental
and inserting final environmental
; and
(D)
by striking March 2007
and inserting July 6, 2009
;
(5)
in paragraph (19) (as so redesignated), by striking Draft
and inserting Final Environmental
;
(6)
by inserting after paragraph (25) (as so redesignated) the following:
(26) Project Service Area
The term Project Service Area means the area that encompasses the 43 Nation chapters, the southwest portion of the Jicarilla Apache Reservation, and the City that is identified to be served by the Project, as illustrated in figure IV–5 (Drawing No. 1695–406–49) of the Final Environmental Impact Statement.;
(7)
by inserting after paragraph (28) (as so redesignated) the following:
(29) Settlement trust funds
The term Settlement Trust Funds means—
(A)
the Navajo Nation Water Resources Development Trust Fund established by subsection (a)(1) of section 10702;
(B)
the Navajo Nation Operations, Maintenance, and Replacement Trust Fund established under subsection (b)(1) of that section; and
(C)
the Jicarilla Apache Nation Operations, Maintenance, and Replacement Trust Fund established under subsection (c)(2) of that section.; and
(8)
by adding at the end the following:
(33) Working Cost Estimate
The term Working Cost Estimate means the Bureau of Reclamation document entitled
NGWSP October 2022 WCEand dated February 26, 2023, that details the costs totaling $2,138,387,000, at the October 2022 price level, of the Project, as configured on that date.
Sec. 3. Navajo-Gallup water supply project
(a) Authorization of Navajo-Gallup water supply project
Section 10602 of the Northwestern New Mexico Rural Water Projects Act (Public Law 111–11; 123 Stat. 1379) is amended—
(1)
in subsection (a)—
(A)
in the subsection heading, by striking In general
and inserting Authorization
;
(B)
by striking The Secretary
and inserting the following:
(1) In general
The Secretary;
(C)
in paragraph (1) (as so designated), by striking Draft Impact Statement
and inserting Final Environmental Impact Statement, as further refined in, and including the facilities identified in, the Working Cost Estimate and any subsequent supplemental documents prepared in accordance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
; and
(D)
by adding at the end the following:
(2) Additional service areas
(A) Findings
Congress finds that—
(i)
expanding the Project Service Area would create opportunities to increase service for additional Nation Tribal members and would not increase the cost of the Project beyond authorization levels described in section 10609(a); and
(ii)
the unit operations and maintenance costs of the Project would be reduced by adding more customers to the Project.
(B) Authorizations for additional Project Service Areas
(i) New Mexico
In addition to delivering water supply from the Project to the Nation communities in the San Juan River Basin, the Nation may expand the Project Service Area in order to deliver water supply from the Project to communities of the Nation within the Rio San Jose Basin, New Mexico.
(ii) Arizona
In addition to delivering water supply from the Project to the Nation communities of Fort Defiance and Window Rock, Arizona, and subject to section 10603(c)(1), the Nation may expand the Project Service Area in order to deliver water supply from the Project to the Nation community of Lupton, Arizona, within the Little Colorado River Basin, Arizona.;
(2)
in subsection (b)—
(A)
in the matter preceding paragraph (1)—
(i)
by inserting acquire,
before construct,
; and
(ii)
by striking Draft Impact Statement
and inserting Final Environmental Impact Statement, as further refined in, and including the facilities identified in, the Working Cost Estimate and any subsequent supplemental documents prepared in accordance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.)
;
(B)
by striking paragraph (1) and inserting the following:
(1)
The water conveyance and storage facilities associated with the San Juan Generating Station (the coal-fired, 4-unit electric power plant and ancillary features located by the San Juan Mine near Waterflow, New Mexico), including the diversion dam, the intake structure, the river pumping plant, the pipeline from the river to the reservoir, the dam and associated reservoir, and any associated land, or interest in land, or ancillary features.;
(C)
in paragraph (2)(A)—
(i)
by striking River near Kirtland, New Mexico,
and inserting Generating Station Reservoir
; and
(ii)
by inserting generally
before follows United States Highway 491
;
(D)
in paragraph (3)(A), by inserting generally
before follows United States Highway 550
; and
(E)
in paragraph (5), by inserting (including any reservoir facility)
after treatment facility
;
(3)
in subsection (c)—
(A)
in the subsection heading, by inserting and Facilities
after Land
;
(B)
in paragraph (1), by striking any land or interest in land that is
and inserting any land or facilities, or interest in land or facilities, that are
; and
(C)
by adding at the end the following:
(4) Land to be taken into trust
(A) In general
On satisfaction of the conditions described in paragraph (7) of the Agreement and after the requirements of sections 10701(e) and 10703 are met, the Secretary shall take legal title to the following land and, subject to subparagraph (D), hold that land in trust for the benefit of the Nation:
(i)
Fee land of the Nation, including—
(I)
the parcels of land on which the Tohlakai Pumping Plant, Reach 12A and Reach 12B, are located, including, in McKinley County, New Mexico—
(aa)
sec. 5, T. 16 N., R. 18 W., New Mexico Prime Meridian; and
(bb)
sec. 33, T. 17 N., R. 17 W., New Mexico Prime Meridian (except lot 9 and the NW1/4 of lot 4);
(II)
the parcel of land on which Reach 12.1 is located, including—
(aa)
NW1/4 and SW1/4 sec. 5, T. 16 N., R. 18 W.;
(bb)
N1/2 sec. 11, T. 16 N., R. 19 W.; and
(cc)
sec. 12, T. 16 N., R. 20 W.; and
(III)
the parcel of land on which Reach 12.2 is located, including NW1/4. sec. 2, T. 16 N., R. 21 W.
(ii)
Public domain land managed by the Bureau of Land Management, including—
(I)
the parcel of land on which the Cutter Lateral Water Treatment Plant is located, including S1/2 sec. 9, T. 25 N., R. 9 W., New Mexico Prime Meridian; and
(II)
the parcel of land on which the Navajo Agricultural Products Industry turnout is located, including NW1/4 and NE1/4 sec. 34, T. 26 N., R. 9 W., New Mexico Prime Meridian.
(iii)
The land underlying the San Juan Generating Station (the coal-fired, 4-unit electric power plant and ancillary features located by the San Juan Mine near Waterflow, New Mexico) acquired by the United States, as described in subsection (b)(1).
(B) Part of Navajo Nation
The land taken into trust under subparagraph (A) shall be part of the Navajo Reservation and administered in accordance with the laws and regulations generally applicable to land held in trust by the United States for the benefit of an Indian Tribe.
(C) Restrictions
(i) Fee land of the nation
The fee land of the Nation taken into trust under subparagraph (A)(i) shall be subject to valid existing rights, contracts, and management agreements, including easements and rights-of-way, unless the holder of the right, contract, lease, permit, or right-of-way requests an earlier termination in accordance with existing law.
(ii) Public domain land
(I) In general
The public domain land managed by the Bureau of Land Management taken into trust under subparagraph (A)(ii) shall be subject to valid existing rights, contracts, leases, permits, and rights-of-way, unless the holder of the right, contract, lease, permit, or right-of-way requests an earlier termination in accordance with existing law.
(II) BIA assumption of benefits and obligations
The Bureau of Indian Affairs shall—
(aa)
assume all benefits and obligations of the previous land management agency under the existing rights, contracts, leases, permits, or rights-of-way described in subclause (I); and
(bb)
disburse to the Nation any amounts that accrue to the United States from those rights, contracts, leases, permits, or rights-of-ways after the date on which the land described in clause (ii) of subparagraph (A) is taken into trust for the benefit of the Nation from any sale, bonus, royalty, or rental relating to that land in the same manner as amounts received from other land held by the Secretary in trust for the Nation.
(iii) Land underlying the San Juan Generating Station
(I) In general
The land underlying the San Juan Generating Station (the coal-fired, 4-unit electric power plant and ancillary features located by the San Juan Mine near Waterflow, New Mexico) taken into trust under subparagraph (A)(iii) shall be subject to a perpetual easement on and over all of the land underlying the San Juan Generating Station reserved to the United States for use by the Bureau of Reclamation and its contractors and assigns—
(aa)
for ingress and egress;
(bb)
to continue construction of the Project; and
(cc)
for operation and maintenance of Project facilities located on that land.
(II) Reserved perpetual easement
The reserved perpetual easement described in subclause (I) shall remain vested in the United States unless title to the Project facilities and appropriate interests in land are conveyed pursuant to subsection (f).
(III) Reserved Federal facilities
The United States shall retain ownership of the San Juan Generating Station (the coal-fired, 4-unit electric power plant and ancillary features located by the San Juan Mine near Waterflow, New Mexico) water conveyance and storage facilities when the underlying land is taken into trust under subparagraph (A)(iii) and title to those facilities shall remain vested in the United States unless title to those facilities are conveyed pursuant to subsection (f).
(D) Savings clause
Nothing in this paragraph affects any—
(i)
water right of the Nation in existence on the day before the date of enactment of the Navajo-Gallup Water Supply Project Amendments Act of 2025; and
(ii)
right or claim of the Nation to any land or interest in land in existence on the day before the date of enactment of the Navajo-Gallup Water Supply Project Amendments Act of 2025.;
(4)
in subsection (d)(1)(D), by striking Draft
and inserting Final Environmental
;
(5)
in subsection (e)—
(A)
by striking The Secretary
and inserting the following:
(1) In general
The Secretary; and
(B)
by adding at the end the following:
(2) Renewable energy and hydroelectric power
(A) Renewable energy
For any portion of the Project that does not have access to Colorado River Storage Project power, the Secretary may use not more than $6,250,000 of the amounts made available under section 10609(a)(1) to develop renewable energy.
(B) Hydroelectric power
Notwithstanding whether a Project facility has access to Colorado River Storage Project power, the Secretary may use not more than $1,250,000 of the $6,250,000 authorized to be used to develop renewable energy under subparagraph (A) to develop hydroelectric power for any Project facility that can use hydraulic head to produce electricity.;
(6)
in subsection (h)(1), in the matter preceding subparagraph (A), by inserting , store,
after treat
; and
(7)
by adding at the end the following:
(i) Deferred construction of Project facilities
(1) Deferred construction of Project facilities
On mutual agreement between the Nation and the Secretary, and the Jicarilla Apache Nation if the deferred Project facilities benefit the Jicarilla Apache Nation, construction of selected Project facilities may be deferred to save operation and maintenance expenses associated with that construction.
(2) Deferred Construction Fund
(A) Establishment
There is established in the Treasury a fund, to be known as the
Navajo Nation’s Navajo-Gallup Water Supply Project Deferred Construction Fund, to consist of—(i)
amounts that correspond to portions of the Project that have been deferred under paragraph (1); and
(ii)
any interest or other gains on amounts referred to in clause (i).
(B) Use of the Deferred Construction Fund
The Nation may use amounts in the Deferred Construction Fund—
(i)
to construct Project facilities that have been deferred under paragraph (1); or
(ii)
to construct alternate facilities agreed on under subparagraph (C).
(C) Alternate facilities consistent with the purpose of the Project
On agreement between the Nation and the Secretary, and the Jicarilla Apache Nation if the deferred Project facilities benefit the Jicarilla Apache Nation, and in compliance with all applicable environmental and cultural resource protection laws, facilities other than those previously agreed to be deferred under paragraph (1) may be constructed if those alternate facilities are consistent with the purposes of the Project described in section 10601.
(3) Amounts to be deposited
Funds allocated from the amounts made available under section 10609(a)(1) to build facilities referred to in paragraph (1) shall be deposited into the Deferred Construction Fund.
(4) Adjustments
On deposit of amounts into the Deferred Construction Fund under paragraph (3), the adjustments to authorized appropriations under section 10609(a)(2) shall no longer apply to those amounts.
(5) Deadline to construct Project facilities
On deposit of all amounts into the Deferred Construction Fund for construction of Project facilities agreed on under paragraph (1), the Secretary shall be deemed to have met the obligation under section 10701(e)(1)(A)(ix).
(6) Future construction of Project facilities
On agreement between the Nation and the Secretary, and the Jicarilla Apache Nation if the deferred Project facilities benefit the Jicarilla Apache Nation, the Nation shall use amounts deposited into the Deferred Construction Fund to construct—
(A)
Project facilities deferred under paragraph (1); or
(B)
alternate Project facilities described in paragraph (2)(C).
(b) Delivery and use of Navajo-Gallup water supply project water
Section 10603 of the Northwestern New Mexico Rural Water Projects Act (Public Law 111–11; 123 Stat. 1382) is amended—
(1)
in subsection (a)(3)(B)—
(A)
in clause (i), by inserting or, if generated on City-owned facilities, by the City
after the Nation
; and
(B)
in clause (ii), by inserting , except that the City shall retain all revenue from the sale of hydroelectric power that is generated on City-owned facilities
after hydroelectric power
; and
(2)
in subsection (g)(2), by striking , except as provided in section 10604(f)
.
(c) Project contracts
Section 10604 of the Northwestern New Mexico Rural Water Projects Act (Public Law 111–11; 123 Stat. 1388) is amended—
(1)
in subsection (a)(4), by striking Subject to subsection (f), the
and inserting The
;
(2)
in subsection (b)(3)—
(A)
in subparagraph (A), by striking subparagraph (B)
and inserting subparagraphs (B) and (C)
;
(B)
in subparagraph (B)—
(i)
in the subparagraph heading, by striking Minimum percentage
and inserting Maximum percentage
;
(ii)
by striking at least 25 percent
and inserting not more than 25 percent
; and
(iii)
by striking , but shall in no event exceed 35 percent
; and
(C)
by adding at the end the following:
(C) Maximum repayment obligation
The repayment obligation of the City referred to in subparagraphs (A) and (B) shall not exceed $76,000,000.;
(3)
in subsection (c)(1)(B), by inserting subsection (f) and
before section 10603(g)
;
(4)
in subsection (d)(1), by striking Draft
and inserting Final Environmental
;
(5)
in subsection (e), by striking Draft
and inserting Final Environmental
;
(6)
by striking subsection (f); and
(7)
by redesignating subsection (g) as subsection (f).
(d) Authorization of appropriations
Section 10609 of the Northwestern New Mexico Rural Water Projects Act (Public Law 111–11; 123 Stat. 1395; 129 Stat. 528) is amended—
(1)
in subsection (a)—
(A)
in paragraph (1), by striking $870,000,000 for the period of fiscal years 2009 through 2024
and inserting $2,175,000,000 for the period of fiscal years 2009 through 2029
;
(B)
by striking paragraph (2) and inserting the following:
(2) Adjustments
(A) In general
The amount under paragraph (1) shall be adjusted by such amounts as may be required—
(i)
by reason of changes since October 2022 in construction cost changes in applicable regulatory standards, as indicated by engineering cost indices applicable to the types of construction involved; and
(ii)
to address construction cost changes necessary to account for unforeseen market volatility that may not otherwise be captured by engineering cost indices described in clause (i), as determined by the Secretary, including repricing applicable to the types of construction and current industry standards involved.
(B) Deferred Construction Fund
Amounts deposited in the Deferred Construction Fund shall not be adjusted pursuant to this paragraph.; and
(C)
in paragraph (4)(B), by striking 10 years
and inserting 15 years
; and
(2)
in subsection (b)—
(A)
in paragraph (1), by striking $30,000,000, as adjusted under paragraph (3), for the period of fiscal years 2009 through 2019
and inserting $37,500,000, as adjusted under paragraph (3), for the period of fiscal years 2009 through 2032
;
(B)
in paragraph (2), by striking 2024
and inserting 2032
; and
(C)
in paragraph (3), by striking The amount under paragraph (1)
and inserting The amount under paragraphs (1) and (2)
.
(e) Taxation of construction, operation, and maintenance of Project facilities
(1) In general
Part III of the Northwestern New Mexico Rural Water Projects Act (Public Law 111–11; 123 Stat. 1379) is amended by adding at the end the following:
10610. Taxation of construction, operation, and maintenance of Project facilities
(a) Nation land
Any activity constituting the construction, operation, or maintenance of Project facilities—
(1)
shall, if the activity takes place on land that is held in trust by the United States for the benefit of the Nation, be subject to taxation by the Nation; and
(2)
shall not be subject to any fee, tax, assessment, levy, or other charge imposed by any State or political subdivision of a State.
(b) Other land
Any activity constituting the construction, operation, or maintenance of Project facilities—
(1)
shall, if the activity takes place on land other than the land described in subsection (a)(1), be subject to taxation by the State in which the land is located, or by a political subdivision of that State to the extent authorized by the laws of that State; and
(2)
shall not be subject to any fee, tax, assessment, levy, or other charge imposed by the Nation.
(2) Clerical amendment
The table of contents in section 1(b) of the Omnibus Public Land Management Act of 2009 (Public Law 111–11; 123 Stat. 991) is amended by inserting after the item relating to section 10609 the following:
Sec. 4. Navajo Nation water rights
(a) Agreement
Section 10701(e) of the Northwestern New Mexico Rural Water Projects Act (Public Law 111–11; 123 Stat. 1400; 129 Stat. 528) is amended—
(1)
in paragraph (1)(A)—
(A)
by striking clause (vii) and inserting the following:
(vii) Navajo nation water resources development trust fund
Not later than December 31, 2019, the United States shall make all deposits into the Navajo Nation Water Resources Development Trust Fund established by section 10702(a)(1).;
(B)
in clause (viii), by striking 2019
and inserting 2032
;
(C)
in clause (ix), by striking 2024
and inserting 2029
; and
(D)
by adding at the end the following:
(x) Deferred Construction Fund
(I) In general
Not later than December 31, 2029, the United States shall make all deposits into the Deferred Construction Fund in accordance with section 10602(i)(3).
(II) Project deadline
On deposit of the amounts into the Deferred Construction Fund under subclause (I), even if certain Project facilities have not yet been constructed, the Secretary shall be deemed to have met the deadline described in clause (ix).; and
(2)
in paragraph (2)(B)—
(A)
in clause (i), by striking Trust Fund
and inserting Settlement Trust Funds
; and
(B)
in clause (ii), by striking Trust Fund
and inserting Settlement Trust Funds
.
(b) Settlement trust funds
(1) In general
Section 10702 of the Northwestern New Mexico Rural Water Projects Act (Public Law 111–11; 123 Stat. 1402) is amended to read as follows:
10702. Settlement trust funds
(a) Navajo nation water resources development trust fund
(1) Establishment
There is established in the Treasury a fund, to be known as the
Navajo Nation Water Resources Development Trust Fund, consisting of—(A)
such amounts as are appropriated to the Navajo Nation Water Resources Development Trust Fund under paragraph (5); and
(B)
any interest earned on investment of amounts in the Navajo Nation Water Resources Development Trust Fund under paragraph (3).
(2) Use of funds
The Nation may use amounts in the Navajo Nation Water Resources Development Trust Fund—
(A)
to investigate, construct, operate, maintain, or replace water project facilities, including facilities conveyed to the Nation under this subtitle and facilities owned by the United States for which the Nation is responsible for operation, maintenance, and replacement costs; and
(B)
to investigate, implement, or improve a water conservation measure (including a metering or monitoring activity) necessary for the Nation to make use of a water right of the Nation under the Agreement.
(3) Investment
Beginning on October 1, 2019, the Secretary shall invest amounts in the Navajo Nation Water Resources Development Trust Fund in accordance with subsection (e).
(4) Investment earnings
Any investment earnings, including interest, credited to amounts held in the Navajo Nation Water Resources Development Trust Fund are authorized to be used in accordance with paragraph (2).
(5) Authorization of appropriations
There are authorized to be appropriated for deposit in the Navajo Nation Water Resources Development Trust Fund—
(A)
$6,000,000 for each of fiscal years 2010 through 2014; and
(B)
$4,000,000 for each of fiscal years 2015 through 2019.
(6) Availability
Any amount authorized to be appropriated to the Navajo Nation Water Resources Development Trust Fund under paragraph (5) shall not be available for expenditure or withdrawal—
(A)
before December 31, 2019; and
(B)
until the date on which the court in the stream adjudication has entered—
(i)
the Partial Final Decree; and
(ii)
the Supplemental Partial Final Decree.
(7) Management
The Secretary shall manage the Navajo Nation Water Resources Development Trust Fund in accordance with subsection (d).
(8) Conditions for expenditure and withdrawal
After the funds become available pursuant to paragraph (6), all expenditures and withdrawals by the Nation of funds in the Navajo Nation Water Resources Development Trust Fund must comply with the requirements of subsection (f).
(b) Navajo nation operations, maintenance, and replacement trust fund
(1) Establishment
The Secretary shall establish a trust fund to be known as the
Navajo Nation Operations, Maintenance, and Replacement Trust Fundfor the purposes set forth in paragraph (2), 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 paragraph (3), together with any interests earned on those amounts under paragraph (4).(2) Use of funds
The Nation may use amounts in the Navajo Nation Operations, Maintenance, and Replacement Trust Fund to pay operation, maintenance, and replacement costs of the Project allocable to the Nation under section 10604.
(3) Authorization of appropriations
There are authorized to be appropriated for deposit in the Navajo Nation Operations, Maintenance, and Replacement Trust Fund $250,000,000.
(4) Investment
Upon deposit of funding into the Navajo Nation Operations, Maintenance, and Replacement Trust Fund pursuant to paragraph (3), the Secretary shall invest amounts deposited in accordance with subsection (e).
(5) Investment earnings
Any investment earnings, including interest, credited to amounts held in the Navajo Nation Operations, Maintenance, and Replacement Trust Fund are authorized to be used in accordance with paragraph (2).
(6) Availability
Any amount authorized to be appropriated to the Navajo Nation Operations, Maintenance, and Replacement Trust Fund under paragraph (3) shall not be available for expenditure or withdrawal until the Nation is responsible for payment of operation, maintenance, and replacement costs as set forth in section 10603(g).
(7) Fluctuation in costs
(A) In general
The amounts authorized to be appropriated under paragraph (3) shall be increased or decreased, as appropriate, by such amounts as may be justified by reason of ordinary fluctuations in costs occurring after October 2022 as indicated by the Bureau of Reclamation Operation and Maintenance Cost Index.
(B) Repetition
The adjustment process under this subparagraph shall be repeated for each subsequent amount appropriated until the amount authorized, as adjusted, has been appropriated.
(C) Period of indexing
The period of indexing adjustment under this subparagraph for any increment of funding shall end on the date on which the funds are deposited into the Navajo Nation Operations, Maintenance, and Replacement Trust Fund.
(8) Management
The Secretary shall manage the Navajo Nation Operations, Maintenance, and Replacement Trust Fund in accordance with subsection (d).
(9) Conditions for expenditure and withdrawal
All expenditures and withdrawals by the Nation of funds in the Navajo Nation Operations, Maintenance, and Replacement Trust Fund must comply with the requirements of subsection (f).
(c) Jicarilla apache nation operations, maintenance, and replacement trust fund
(1) Prerequisite to establishment
Prior to establishment of the trust fund under paragraph (2), the Secretary shall conduct an Ability to Pay study to determine what operation, maintenance, and replacement costs of that section of the Project serving the Jicarilla Apache Nation are in excess of the ability of the Jicarilla Apache Nation to pay.
(2) Establishment
Upon completion of the Ability to Pay study as set forth in paragraph (1), the Secretary shall establish a trust fund to be known as the
Jicarilla Apache Nation Operations, Maintenance, and Replacement Trust Fundfor the purposes set forth in paragraph (3), 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 paragraph (4), together with any interests earned on those amounts under paragraph (5).(3) Use of funds
The Jicarilla Apache Nation may use amounts in the Jicarilla Apache Nation Operations, Maintenance, and Replacement Trust Fund to pay operation, maintenance, and replacement costs of the Project allocable to the Jicarilla Nation under section 10604.
(4) Authorization of appropriations
There are authorized to be appropriated for deposit in the Jicarilla Apache Nation Operations, Maintenance, and Replacement Trust Fund the amounts the Secretary has determined are in excess of the ability of the Jicarilla Apache Nation to pay in the Ability to Pay study required under paragraph (1) up to a maximum of $10,000,000.
(5) Investment
Upon deposit of funding into the Jicarilla Apache Nation Operations, Maintenance, and Replacement Trust Fund pursuant to paragraph (4), the Secretary shall invest amounts in the fund in accordance with subsection (e).
(6) Investment earnings
Any investment earnings, including interest, credited to amounts held in the Jicarilla Apache Nation Operations, Maintenance, and Replacement Trust Fund are authorized to be used in accordance with paragraph (3).
(7) Availability
Any amount authorized to be appropriated to the Jicarilla Apache Nation Operations, Maintenance, and Replacement Trust Fund under paragraph (4) shall not be available for expenditure or withdrawal until the Jicarilla Apache Nation is responsible for payment of operation, maintenance, and replacement costs as set forth in section 10603(g).
(8) Fluctuation in costs
(A) In general
The amounts authorized to be appropriated under paragraph (4) shall be increased or decreased, as appropriate, by such amounts as may be justified by reason of ordinary fluctuations in costs occurring after October 2022 as indicated by the Bureau of Reclamation Operation and Maintenance Cost Index.
(B) Repetition
The adjustment process under this subparagraph shall be repeated for each subsequent amount appropriated until the amount authorized, as adjusted, has been appropriated.
(C) Period of indexing
The period of indexing adjustment under this subparagraph for any increment of funding shall end on the date on which the funds are deposited into the Jicarilla Apache Nation Operations, Maintenance, and Replacement Trust Fund.
(9) Management
The Secretary shall manage the Jicarilla Apache Nation Operations, Maintenance, and Replacement Trust Fund in accordance with subsection (d).
(10) Conditions for expenditure and withdrawal
All expenditures and withdrawals by the Jicarilla Apache Nation of funds in the Jicarilla Apache Nation Operations, Maintenance, and Replacement Trust Fund must comply with the requirements of subsection (f).
(d) Management
The Secretary shall manage the Settlement Trust Funds, invest amounts in the Settlement Trust Funds pursuant to subsection (e), and make amounts available from the Settlement Trust Funds for distribution to the Nation and the Jicarilla Apache Nation in accordance with the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.).
(e) Investment of the trust funds
The Secretary shall invest amounts in the Settlement Trust Funds in accordance with—
(1)
the Act of April 1, 1880 (25 U.S.C. 161);
(2)
the first section of the Act of June 24, 1938 (25 U.S.C. 162a); and
(3)
the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.).
(f) Conditions for expenditures and withdrawals
(1) Tribal management plan
(A) In general
On approval by the Secretary of a Tribal management plan in accordance with the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.), the Nation and the Jicarilla Apache Nation may withdraw all or a portion of the amounts in the Settlement Trust Funds.
(B) Requirements
In addition to any requirements under the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.), a Tribal management plan shall require that the Nation and Jicarilla Apache Nation only use amounts in the Settlement Trust Funds for the purposes described in subsection (a)(2), (b)(2), or (c)(3), as applicable.
(2) Enforcement
The Secretary may take judicial or administrative action to enforce the provisions of any Tribal management plan to ensure that any amounts withdrawn from the Settlement Trust Funds are used in accordance with this subtitle.
(3) No liability
The Secretary or the Secretary of the Treasury shall not be liable for the expenditure or investment of any amounts withdrawn from the Settlement Trust Funds by the Nation or the Jicarilla Apache Nation.
(4) Expenditure plan
(A) In general
The Nation and Jicarilla Apache Nation shall submit to the Secretary for approval an expenditure plan for any portion of the amounts in the Settlement Trust Funds made available under this section that the Nation or the Jicarilla Apache Nation does not withdraw under this subsection.
(B) Description
An expenditure plan submitted under subparagraph (A) shall describe the manner in which, and the purposes for which, funds of the Nation or the Jicarilla Apache Nation remaining in the Settlement Trust Funds will be used.
(C) Approval
On receipt of an expenditure plan under subparagraph (A), the Secretary shall approve the plan if the Secretary determines that the plan is reasonable and consistent with this subtitle.
(5) Annual report
The Nation and Jicarilla Apache Nation shall submit to the Secretary an annual report that describes any expenditures from the Settlement Trust Funds during the year covered by the report.
(6) Limitation
No portion of the amounts in the Settlement Trust Funds shall be distributed to any Nation or Jicarilla Apache Nation member on a per capita basis.
(2) Clerical amendment
The table of contents in section 1(b) of the Omnibus Public Land Management Act of 2009 (Public Law 111–11; 123 Stat. 991) is amended by striking the item relating to section 10702 and inserting the following:
(c) Waivers and releases
Section 10703 of the Northwestern New Mexico Rural Water Projects Act (Public Law 111–11; 123 Stat. 1403) is amended—
(1)
in subsection (d)(1)(A), by striking 2025
and inserting 2030
; and
(2)
in subsection (e)(2), in the matter preceding subparagraph (A), by striking 2025
and inserting 2030
.
Sec. 5. Non-Project water for use in the State of Utah
Section 10602(h) of the Northwestern New Mexico Rural Water Projects Act (Public Law 111–11; 123 Stat. 1382) is amended—
(1)
in paragraph (1), in the matter preceding subparagraph (A), by striking paragraph (2)
and inserting paragraph (3)
;
(2)
by redesignating paragraph (2) as paragraph (3); and
(3)
by inserting after paragraph (1) the following:
(2) Conveyance of non-Project water to the State of Utah
(A) Definitions
In this paragraph:
(i) Navajo/Utah Settlement Agreement
The term Navajo/Utah Settlement Agreement means the agreement entitled
Navajo Nation/State of Utah Water Rights Settlement Agreement, dated May 27, 2022, and authorized by section 1102 of title XI of division FF of Public Law 116–260 (134 Stat. 3224).(ii) Navajo-Utah water rights
The term Navajo-Utah water rights has the meaning given the term Navajo water rights in section 1102(b) of title XI of division FF of Public Law 116–260 (134 Stat. 3225).
(B) In general
Subject to paragraph (1), the Nation may provide non-Project water to communities of the Nation in the State of Utah, subject to the conditions that—
(i)
not more than 2,000 acre-feet per year of non-Project water may be treated, stored, or conveyed through Project and non-Project infrastructure for the benefit of those communities;
(ii)
any non-Project water treated or conveyed through Project and non-Project infrastructure and delivered to the New Mexico state line for the benefit of those communities shall—
(I)
be considered part of the Navajo-Utah water rights as quantified in section 1102(d)(1)(A) of title XI of division FF of Public Law 116–260 (134 Stat. 3227); and
(II)
be accounted for as a depletion by the Nation to be counted against the apportionment of the State of Utah under the Compact for purposes of the depletion accounting under the Navajo/Utah Settlement Agreement;
(iii)
Project funds shall not be used to design, plan, construct, operate, maintain, or repair any additional infrastructure in the State of New Mexico or any infrastructure in the State of Arizona or Utah to join the Project infrastructure to the Sweetwater pipeline (non-Project infrastructure);
(iv)
the share of any Project Participants' Project operation, maintenance, and replacement costs shall not be increased in connection with the use of non-Project infrastructure;
(v)
the United States shall have no responsibility or obligation to provide non-Project water to those communities under this paragraph and no Federal funding shall be provided for the costs to construct, operate, maintain, and replace any non-Project infrastructure necessary for storage and conveyance of non-Project water from the State of New Mexico to serve those communities except for funds authorized under—
(I)
section 1102 of title XI of division FF of Public Law 116–260 (134 Stat. 3224);
(II)
section 7 of the Act of August 5, 1954 (42 U.S.C. 2004a); and
(III)
the Indian Health Care Improvement Act (25 U.S.C. 1601 et seq.);
(vi)
efforts associated with providing non-Project water to those communities shall not delay the Project, or any component of the Project, in a manner that would be prejudicial to any Project Participant; and
(vii)
in addition to the requirements of this paragraph, delivery of non-Project water under this paragraph is subject to—
(I)
the terms of the Navajo/Utah Settlement Agreement;
(II)
the State of Utah issuing a decreed water right pursuant to the terms of the Navajo/Utah Settlement Agreement;
(III)
the State of Utah not incurring additional financial obligations beyond those identified in the Navajo/Utah Settlement Agreement; and
(IV)
the execution of an implementation agreement between the Nation and the State of Utah relating to accounting and measurement of non-Project water under this paragraph to be consistent with the terms of the Navajo/Utah Settlement Agreement.
(C) Clarification
The State of New Mexico shall have no responsibility or obligation to provide—
(i)
non-Project water to communities of the Nation in the State of Utah under this paragraph; or
(ii)
any funding under this paragraph.